BY MAJ. CHARLES G. KELS
Over the past two years, prominent officials in the Obama administration — most of them high-ranking lawyers — have offered public defenses and rationales for the so-called “targeted killing” program carried out predominantly with unmanned aerial vehicles, or drones.

These statements are undoubtedly a good thing, since the best way to prevent outside critiques of U.S. policy from becoming accepted wisdom is to challenge them vociferously and explain our own reasoning clearly. This task became particularly urgent once the United Nations “special rapporteur on extrajudicial, summary or arbitrary executions” delivered his 2010 report to the Human Rights Council questioning the legality of all U.S. drone strikes outside of “hot” conflict zones — that is, in locations other than Afghanistan and (until recently) Iraq.

Inasmuch as the current targeted killing program is a continuation (albeit vastly expanded) of the previous administration’s policies, and will surely be pursued in some form by future ones, it is vital that the U.S. government put forward a coherent and sustainable theory of what we are doing and why. So far, the official explanations fall short of the mark.

PUBLIC STATEMENTS

As the Obama administration has taken pains to point out, U.S. actions overseas must comply with “all applicable law,” meaning both domestic and international legal norms. International law is composed largely of the customs observed by states, and such customary international law is informed primarily by a combination of state practice (what nations do) and opinio juris (why nations do it). That is, to establish a desirable rule as customary international law — or to prevent such establishment of an undesirable rule — states must not only act consistently in accordance with or in defiance of that rule but also demonstrate that they are acting that way as a matter of legal principle.

Therefore, the recent speeches by top government officials are significant not just as a matter of public accountability to the American people in whose name targeted killings are being ordered but also as the preliminary foundations of an emerging legal doctrine establishing both the permissibility and limits of a tenable targeted killing program using drone technology. The good news is that the administration now clearly understands this, perhaps in part due to the persistence of certain gadflies in academia and think tanks who have been insisting over the past several years that the government discharge its duty to publicly recognize and defend what it already believes it has the legal right to do.

Thus, this spring the president’s counterterrorism adviser, John Brennan, acknowledged that as “the first nation to regularly conduct strikes using remotely piloted aircraft in an armed conflict,” the U.S. has a special obligation to set an example of the lawful and ethical prosecution of such a program. Brennan attested to the administration’s mindfulness that it is “establishing precedents that other nations may follow, and not all of them will be nations that share our interests or the premium we put on protecting life, including innocent civilians.” In other words, China is watching closely, and everything we do and say will most certainly be used against us when the Chinese inevitably launch a full-scale drone strike program of their own and we contest its legality.

The administration’s speeches can thereby be read as an emerging body of opinio juris establishing the legal thinking behind recent U.S. counterterrorism practices, as well as a hedge against future bad actors who seek to justify their practices as consistent with American precedent. Granted, these statements might not be as forthcoming as some observers would like, given the White House’s self-assigned goal of unprecedented transparency and its decision to release the legal opinions on interrogation practices rendered by the previous administration. What inquiring minds really want are the Justice Department’s memos on targeted killing, most especially the one justifying last year’s drone strike on American-born propagandist Anwar al-Awlaki. But in an ironic twist that is perhaps unsurprising to political veterans, the current administration is considerably more circumspect about disclosing its own internal legal communications than it was with respect to its predecessor’s.

ADDING IT UP

Nonetheless, we can only work with what we have, and the official statements to date at the very least offer a broad framework shedding light on some of the major U.S. positions in this area. First, the U.S. government maintains that the nation is at war, in an armed conflict with al-Qaida, the Taliban and all their associated forces. In terms of domestic law, operations against these enemies were sanctioned by Congress via the Authorization for the Use of Military Force, passed one week after the terrorist attacks of Sept. 11, 2001, and legislatively reaffirmed a decade later.

The AUMF does not specify any geographical limitations, but instead authorizes the president to “use all necessary and appropriate force” against broadly specified actors linked in some fashion to 9/11 “in order to prevent any future acts of international terrorism” against us by those parties. The president also retains his constitutionally derived powers as commander in chief “to protect the nation from any imminent threat of attack,” but the AUMF serves as the bedrock of legal authority for military activities in this particular conflict.

Second, in terms of international law — and more specifically, within that subset of international law governing the use of force (known as jus ad bellum) — the U.S. asserts that we are engaged in lawful actions pursuant to the inherent right of self-defense recognized by Article 51 of the U.N. Charter. More to the point, we are relying on a corollary of the self-defense principle, which holds that a state (in this case, the U.S.) may lawfully use force within the sovereign territory of another state (Pakistan and elsewhere) to defend itself against non-state actors (al-Qaida and its affiliates) when that host state is “unwilling or unable” to take effective action to stem the tide of violence emanating from within its borders.

According to the U.S. argument, such defensive operations require neither the consent of the state that is harboring (wittingly or unwittingly) the violent nonstate actors — although such consent is certainly preferable, as may be the case in Yemen and, at least in some cases, in Pakistan — nor an authorization for the use of force from the U.N. Nor, for that matter, must we be at war with the state whose territory we are entering, because our fight against al-Qaida legitimately extends to wherever members of that group or its partners may be tracked down. This “unwilling or unable” test is based upon the aforementioned notion of customary international law, but is certainly neither uncontroversial nor uncontrovertibly settled. It is distinct from the so-called “Bush doctrine” of states being “either with us or against us,” because it provides a legal tool for us to bypass the territorial sovereignty of a nation that is either complicit or hapless with respect to combating terrorism, without requiring us to make a definitive statement as to the nature of our official relationship with that country’s government.

Third, the U.S. position is that our targeted killing program is designed to comply with the rules governing conduct in war, otherwise known as jus in bello or the law of armed conflict (LOAC). As State Department legal adviser Harold Koh has stated, “the rules that govern targeting do not turn on the type of weapon system used” (unless specifically designed to inflict unnecessary suffering), but rather how those weapons are employed. In this sense, the use of drones as a weapons platform is irrelevant — targeting law is the same regardless of whether the ordnance is delivered via a sniper, high-altitude bomber, sea-based launch mechanism or pilotless aircraft. If anything, officials claim, drones enable us to be super-vigilant in our targeting practices by affording unparalleled surveillance capabilities and removing the elements of risk and fear on the part of the trigger-puller.

Moreover, the U.S. says, targeted killing does not constitute “assassination,” which is prohibited under domestic law by Executive Order 12333 — promulgated first by President Ford and reissued under President Reagan — and in international law via the ban on treachery under the Annex to The Hague Convention IV of 1907. According to Defense Department General Counsel Jeh Johnson, “the pejorative term ‘assassination’... should be rejected in this context,” because we are in an armed conflict and thereby empowered to exercise lethal force against valid military objectives. The fact that we are facing an unconventional enemy, Attorney General Eric Holder has said, does not alter our ability to take decisive action.

Yet the question of who constitutes such a valid objective implicates another hotly contested issue in itself. Namely, when can a civilian who is not part of a state’s armed forces be lawfully targeted based upon actions that constitute taking a “direct part in hostilities”? The U.S. government has chosen largely to elude this controversy in its public statements, but it would help, again as a matter of opinio juris, for us to explain the standards we use when applying that categorization. This is especially the case because in 2009, the International Committee for the Red Cross published an “Interpretive Guidance” document that is starkly at odds with the way American practitioners of LOAC analyze targeting decisions.

The historical analogy invoked most often by U.S. officials to rebut the “assassination” charge is our downing of the plane carrying Japan’s most prominent naval flag officer in 1943, based upon intercepted intelligence as to his flight itinerary. This analogy is not particularly helpful in terms of the “direct part in hostilities”debate, because Adm. Isoroku Yamamoto was clearly a member of a national military. A more useful starting point, at least in terms of exploring the mechanism by which civilians render themselves military objectives, might be our early 19th-century incursion into Libya to track down Barbary pirates.

Finally, the administration emphasizes its “rigorous standards and process of review ... when considering and authorizing strikes” outside of “hot” war zones. The State Department’s Koh has insinuated that this robust vetting process is integral to validating our legitimate self-defense claim in each and every targeted killing operation. This is a somewhat disconcerting line of argument, because it is seemingly at odds with the government’s overall assertion that we are in an armed conflict with al-Qaida. Self-defense is a jus ad bellum principle; once we are at war, the appropriate legal standards for applying force are guided by jus in bello. Applying a self-defense analysis to each individual drone strike — as opposed to the time-honored LOAC principles of war fighters — sends mixed signals about whether we really believe we are in an armed conflict.

Given that the lawful imperative of U.S. self-defense in World War II was the unconditional surrender of the Axis powers, we would seem to be on firm ground today by strictly maintaining that our right of self-defense, as triggered by the terrorist attacks of 9/11, is geared toward the much narrower goal of degrading or eliminating al-Qaida’s capability to launch another deadly attack against the U.S. homeland. Within that framework, we are guided by LOAC in the conduct of hostilities. Indeed, the U.S. government clearly believes that drone warfare is particularly suited to the task of waging an armed conflict with limited goals, because the new technology enables to us to synergize the campaign’s means and ends as never before.

At least in the context of an American citizen such as al-Awlaki, the attorney general has stated that on top of traditional LOAC principles, the elaborate “kill list” procedure considers the imminence of the threat posed by the individual, as well as the feasibility of capture in lieu of deadly force. Such robust executive deliberation, Holder argues, satisfies the Fifth Amendment’s accordance of due process of law; this provides the context in which he famously said that “the Constitution guarantees due process, not judicial process.” The attorney general has taken considerable heat for this statement, in large part because an ultra-secretive executive war-making function is an odd tool with which to safeguard constitutional rights. From an armed conflict perspective, however, law professor Jack Goldsmith is surely correct in his estimation that the current U.S. system, as described in the administration’s speeches, “goes far beyond any process given to any target in any war in American history.”

DOES IT HOLD WATER?

Taken individually, each of these arguments is reasonable, accurate and perhaps even persuasive. Viewed as a whole, however, the U.S. position suffers from a degree of cognitive dissonance which results from our trying to please everyone at once instead of holding firm to basic, time-tested principles. In the end, this scattershot approach risks undermining our legal authority and — ironically — pleasing no one. The problem emanates from attempting to superimpose legal doctrines on top of one another rather than insisting on their own internal logic. The net effect is to make us appear hesitant about the wisdom and legality of our own actions, which merely emboldens those critics whom we can never hope to satisfy anyway — at least not without compromising our own security.

To see why it’s so crucial for us to speak boldly and plainly, it’s important to understand what entities such as the U.N. Human Rights Council and the Red Cross are really trying to do. At base, these noble organizations — reflective of the international human rights law community as a whole, with a decidedly continental European outlook — believe that “sporadic, low-intensity attacks” from nonstate actors “do not rise to the level of armed attack” that would enable us to invoke the right of self-defense as a basis for resorting to force. As the aforementioned U.N. report approvingly remarks, “the legality of a defensive response must be judged in light of each armed attack, rather than by considering occasional, although perhaps successive, armed attacks in the aggregate.”

In other words, the human rights community rejects our jus ad bellum argument that we are at war with al-Qaida wherever they may be. Moreover, these institutions deny that we are in an armed conflict at all — at least outside of “hot” war zones — both because al-Qaida is not cohesive enough and because the intensity and duration of the havoc it wreaks is insufficiently destructive. Thus, the applicable standard for applying force in each instance is not LOAC; jus in bello is out the window because there is no war. Rather, the peacetime model of human rights law prevails. This clearly is not a position that the U.S. can abide: first, because it eradicates any realistic deterrent for states to rein in terrorist attacks emanating from their territory; and second, because it effectively neuters our considerable national security apparatus as a counterterrorism asset. Simply put, it is an attempt to hem us in by wedding us to a police paradigm rather than a military one.

WHAT TO DO

This context illustrates precisely why the government has to stop straddling the fence and sending mixed messages about what we are doing. We must emphatically state that any complex vetting process undertaken by the president before targeting an individual terrorist is simply a matter of discretionary policy and grand strategy, not legal obligation. The bizarre “bureaucratic ritual” of White House “Terror Tuesday” meetings attended by high-level political advisers — as reported in a recent, much-publicized New York Times article — bears an unsettling resemblance to President Lyndon Johnson’s well-documented “Tuesday lunches” reviewing target lists for Vietnam. Although the conflicts and eras clearly differ, the U.S. must not repeat the mistakes of the Rolling Thunder campaign by allowing overly restrictive and centralized targeting rules to degrade the efficient and lawful application of our military might.

In this vein, when the attorney general invokes the due process clause of the Constitution in connection with fighting an avowed enemy belligerent — who just so happens to be American by birth — it can create considerable confusion. Constitutional due process should be extraneous to wartime targeting, for the sake of both meaningful due process and military effectiveness. As we have seen, such promises of due process through internal executive deliberations will not satisfy the American Civil Liberties Union, but they will send perplexing signals as to whether we are really at war. It makes no difference whether an enemy combatant is an American; what matters is his belligerency. An American national at Omaha Beach wearing a Nazi uniform and firing at our troops would have been just as valid a target as the German national beside him. As Johnson, the Pentagon’s general counsel, has said, “belligerents who also happen to be U.S. citizens do not enjoy immunity where noncitizen belligerents are valid military objectives.”

Moreover, it is crucial that senior officials stop making outlandish claims of “zero” civilian casualties. No advanced technological weapons system or exhaustive vetting process can guarantee perfection, and this is not what LOAC demands. The rules governing combatants in warfare were, quite literally, developed through hard-fought experience, and they reflect the accrued wisdom of warriors over centuries. The jus in bello principles of necessity and distinction, and the proportionality test that balances them, require armed forces to take reasonable precautions, while simultaneously recognizing the inevitability of innocent death in war. Laying out a “zero casualties” standard merely encourages our enemies to employ human shields, which is a lesson they already know all too well as it is.

The U.S. also needs to be very careful about saying that we only undertake lethal force when capture is not feasible and apply an “imminent threat” test to every application of violence. This oft-repeated assertion appears to be a reaction to politically motivated complaints that the current focus on targeted killing is a cynical maneuver designed to avoid the thorny detention issues of the previous administration. However, when the U.S. proclaims a capture-first, kill-second policy, we are feeding right into the hands of the international human rights law community. There is no obligation under LOAC to refrain from targeting the enemy, even if capture is a viable option. In fact, belligerents are lawful targets at all times, and only when they attempt to surrender must we hold fire and offer quarter. The obligation to calibrate force is a function of the law enforcement paradigm, which is precisely what certain international institutions want to force us to adopt. Police officers must arrest rather than kill, reserving deadly force as a last option in imminent defense of life. The same does not hold for soldiers.

Finally, some U.S. spokespeople continue to declare that targeted killings deliver “justice” to terrorists. This is patently untrue and counterproductive. “Justice” entails due process, which again is inapplicable to LOAC. The rules governing conduct in war stipulate that belligerents are subject to force because they employ force. This duality says nothing about their moral guilt or innocence. Our drone pilots and special operators are not judges dispensing transnational justice to outlaws. They are war fighters. Contrary to some political assertions, the raid on Osama bin Laden was not an act of justice for 9/11. It was a lawful and successful use of force in the context of an armed conflict.

The administration’s senior legal officials are to be lauded for their efforts to publicly explicate the justifications and reasoning behind the drone strike program. But in making our case to the world and setting precedents for the future, we must resist the temptation to be too clever by half. The U.S. will never placate everyone, so we are best off being clear about what we believe to be right. Namely: we are in an armed conflict with al-Qaida and its affiliates, authorized domestically by congressional authorization and internationally by the inherent right of self-defense. In that fight, we will apply and abide by LOAC, maintaining the highest professional standards, but making no promises of perfection or due process. The law of war demands no more and no less.

It makes no difference whether an enemy combatant is an American; what matters is his belligerency. An American national at Omaha Beach wearing a Nazi uniform and firing at our troops would have been just as valid a target as the German national beside him. As Johnson, the Pentagon’s general counsel, has said, “belligerents who also happen to be U.S. citizens do not enjoy immunity where noncitizen belligerents are valid military objectives.”

 motyak wrote:

It makes no difference whether an enemy combatant is an American; what matters is his belligerency. An American national at Omaha Beach wearing a Nazi uniform and firing at our troops would have been just as valid a target as the German national beside him. As Johnson, the Pentagon’s general counsel, has said, “belligerents who also happen to be U.S. citizens do not enjoy immunity where noncitizen belligerents are valid military objectives.”

Is this bit in your laws over there somewhere? Or is that just the opinion of the person writing.

 Ratbarf wrote:
Hmm, so I wonder if someone where to kill a drone pilot in America, say in their house while they were sleeping, and then surrendered to American forces, if they would be treated as a legal combatant or a terrorist? .

 easysauce wrote:
this is only what we know, its what we dont know that makes me worry.

 motyak wrote:
[edit: and thanks Ouze, I asked because I have no idea about your laws. And the laws actually carry on overseas? Or do they only carry on overseas when the person doing it is the US government? For example if France had drones, I can't see it being illegal that they killed a terrorist, right? It's just because it is the US government doing it?

 motyak wrote:

 Ratbarf wrote:
Hmm, so I wonder if someone where to kill a drone pilot in America, say in their house while they were sleeping, and then surrendered to American forces, if they would be treated as a legal combatant or a terrorist? .

If an American murdered another American in America? I assume that, short of some proof of a conspiracy of terrorism, they'd be treated like any other murderer.

 Gentleman_Jellyfish wrote:
What would have to happen these days for someone to get impeached?

 Ouze wrote:
He wasn't "threatened with it", he was in fact impeached.

 MrMoustaffa wrote:
I forgot you can be impeached and never actually get kicked out of the office.

 Ouze wrote:

That was a hypothetical situation, not something I've done.

 Ouze wrote:

 CptJake wrote:
I very seriously doubt this gets much coverage except on libertarian web sites and a bit on Fox. It will not swallow up his speech.

In which we now pretend mainstream media such as the NY times will not cover a story, in a thread in which the OP's article is from the NY times.

Clearly liberal bias has once again buried this story to protect Obama! WAKE UP, SHEEPLE!

 Ouze wrote:
There isn't any sort of, that I am aware, international agreement that has guidelines for the use of drone strikes. If France were to enact a drone strike, it would be between them and their voters.

 d-usa wrote:
I don't really give a feth if they were nuclear scientists helping them build bombs. If they were citizens then you bring them in and make them stand trial.

Short of an "A citizen was standing there with his finger on the button so we took him out" scenario, any killing of a US citizen without a trial is unconstitutional in my book.

 CptJake wrote:

 d-usa wrote:
I don't really give a feth if they were nuclear scientists helping them build bombs. If they were citizens then you bring them in and make them stand trial.

Short of an "A citizen was standing there with his finger on the button so we took him out" scenario, any killing of a US citizen without a trial is unconstitutional in my book.

Not trying to be a smart ass, but how do you propose bringing them in, and how do you propose handling cases where they really can't be brought in?

How do you propose gathering evidence which can be brought up in a court?

 d-usa wrote:

 CptJake wrote:

 d-usa wrote:
I don't really give a feth if they were nuclear scientists helping them build bombs. If they were citizens then you bring them in and make them stand trial.

Short of an "A citizen was standing there with his finger on the button so we took him out" scenario, any killing of a US citizen without a trial is unconstitutional in my book.

Not trying to be a smart ass, but how do you propose bringing them in, and how do you propose handling cases where they really can't be brought in?

You work on bringing them in. Just like any other criminal. Unless you guys are fine with adding (*unless it's too hard) at the bottom of the constitution.

How do you propose gathering evidence which can be brought up in a court?

How are we deciding that these citizens are eligble for extrajudicial execution? Whatever evidence is good enough for the administration to push the kill button is good enough for a trial.

 Ahtman wrote:
We've had this discussion before at least twice, on what constitutes giving up one's citizenship. It is a murky area. One side argues that you can never do it, one that you would pretty much have to stand on the capitol steps and turn in a parchment in writing specifically stating you are renouncing your citizenship, and the last is that your actions can be considered renouncing ones citizenship, when those actions are the active participation in the planning and execution of plots aimed at killing other Americans while in cahoots of terrorist organizations.

There was no agreement than, and I doubt there will be now.

A. THE IMMIGRATION & NATIONALITY ACT

Section 349(a)(5) of the Immigration and Nationality Act (INA) (8 U.S.C. 1481(a)(5)) is the section of law governing the right of a United States citizen to renounce his or her U.S. citizenship. That section of law provides for the loss of nationality by voluntarily

"(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state , in such form as may be prescribed by the Secretary of State" (emphasis added).

B. ELEMENTS OF RENUNCIATION

A person wishing to renounce his or her U.S. citizenship must voluntarily and with intent to relinquish U.S. citizenship:

appear in person before a U.S. consular or diplomatic officer,
in a foreign country (normally at a U.S. Embassy or Consulate); and
sign an oath of renunciation
Renunciations that do not meet the conditions described above have no legal effect. Because of the provisions of Section 349(a)(5), U.S. citizens cannot effectively renounce their citizenship by mail, through an agent, or while in the United States. In fact, U.S. courts have held certain attempts to renounce U.S. citizenship to be ineffective on a variety of grounds, as discussed below.

C. REQUIREMENT - RENOUNCE ALL RIGHTS AND PRIVILEGES

A person seeking to renounce U.S. citizenship must renounce all the rights and privileges associated with such citizenships. In the case of Colon v. U.S. Department of State , 2 F.Supp.2d 43 (1998), the U.S. District Court for the District of Columbia rejected Colon’s petition for a writ of mandamus directing the Secretary of State to approve a Certificate of Loss of Nationality in the case because he wanted to retain the right to live in the United States while claiming he was not a U.S. citizen.

D. DUAL NATIONALITY / STATELESSNESS

Persons intending to renounce U.S. citizenship should be aware that, unless they already possess a foreign nationality, they may be rendered stateless and, thus, lack the protection of any government. They may also have difficulty traveling as they may not be entitled to a passport from any country. Even if not stateless, former U.S. citizens would still be required to obtain a visa to travel to the United States, or show that they are eligible for admission pursuant to the terms of the Visa Waiver Pilot Program (VWPP). Nonetheless, renunciation of U.S. citizenship may not prevent a foreign country from deporting that individual to the United States in some non-citizen status.

E. TAX & MILITARY OBLIGATIONS /NO ESCAPE FROM PROSECUTION

Persons who wish to renounce U.S. citizenship should be aware of the fact that renunciation of U.S. citizenship may have no affect whatsoever on his or her U.S. tax or military service obligations (contact the Internal Revenue Service or U.S. Selective Service for more information). In addition, the act of renouncing U.S. citizenship does not allow persons to avoid possible prosecution for crimes which they may have committed in the United States, or escape the repayment of financial obligations previously incurred in the United States or incurred as United States citizens abroad.

F. RENUNCIATION FOR MINOR CHILDREN/INCOMPETENTS

Citizenship is a status that is personal to the U.S. citizen. Therefore, parents may not renounce the citizenship of their minor children. Similarly, parents/legal guardians may not renounce the citizenship of individuals who are mentally incompetent. Minors seeking to renounce their U.S. citizenship must demonstrate to a consular officer that they are acting voluntarily and that they fully understand the implications/consequences attendant to the renunciation of U.S. citizenship.

G. IRREVOCABILITY OF RENUNCIATION

Finally, those contemplating a renunciation of U.S. citizenship should understand that the act is irrevocable, except as provided in section 351 of the INA (8 U.S.C. 1483), and cannot be canceled or set aside absent successful administrative or judicial appeal. (Section 351(b) of the INA provides that an applicant who renounced his or her U.S. citizenship before the age of eighteen can have that citizenship reinstated if he or she makes that desire known to the Department of State within six months after attaining the age of eighteen. See also Title 22, Code of Federal Regulations, section 50.20).

A U.S. citizen who is a resident or citizen of a foreign country may be subject to compulsory military service in that country. Although the United States recognizes the problems that may be caused by such foreign military service, there is little that we can do to prevent it since each sovereign country has the right to enact its own laws on military service and apply them as it sees fit to its citizens and residents.

Military service by U.S. citizens may cause problems in the conduct of our foreign relations since such service may involve U.S. citizens in hostilities against countries with which we are at peace. For this reason, U.S. citizens facing the possibility of foreign military service should do what is legally possible to avoid such service.

Federal statutes long in force prohibit certain aspects of foreign military service originating within the United States. The current laws are set forth in Section 958-960 of Title 18 of the United States Code. In Wiborg v. U.S. , 163 U.S. 632 (1896), the Supreme Court endorsed a lower court ruling that it was not a crime under U.S. law for an individual to go abroad for the purpose of enlisting in a foreign army; however, when someone has been recruited or hired in he United States, a violation may have occurred. The prosecution of persons who have violated 18 U.S.C. 958-960 is the responsibility of the Department of Justice.

Although a person's enlistment in the armed forces of a foreign country may not constitute a violation of U.S. law, it could subject him or her to Section 349(a)(3) of the Immigration and Nationality Act [8 U.S.C. 1481(a)(3)] which provides for loss of U.S. nationality if an American voluntarily and with the intention of relinquishing U.S. citizenship enters or serves in foreign armed forces engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer.

Military service in foreign countries, however, usually does not cause loss of citizenship since an intention to relinquish citizenship normally is lacking. In adjudicating loss of nationality cases, the Department has established an administrative presumption that a person serving in the armed forces of a foreign state not engaged in hostilities against the United States does not have the intention to relinquish citizenship. On the other hand, voluntary service in the armed forces of a state engaged in hostilities against the United States could be viewed as indicative of an intention to relinquish U.S. citizenship.

Pursuant to Section 351(b) of the Immigration and Nationality Act, a person who served in foreign armed forces while under the age of eighteen is not considered subject to the provisions of Section 349(a)(3) if, within six months of attaining the age of eighteen, he or she asserts a claim to United States citizenship in the manner prescribed by the Secretary of State.

Involuntarily Losing Your US Citizenship (Denaturalization)

Both the State Department and the USCIS have specfic laws and regulations they must follow in determining whether someone’s US citizenship should be taken away.

1. Convicted For An Act Of Treason Against The United States

Treason is a serious crime, and the Constitution defines the requirements for convicting someone of treason. Treason is waging a violent war against the United States in cooperation with a foreign country or any organized group. It includes assisting or aiding any foreign country or organization in taking over or destroying this country including abolishing the Constitution. Treason also consists of attempting by overt acts to overthrow the US government or of betraying our government into the hands of a foreign power. If you are caught and convicted of treason, you can pretty much count on losing your US citizenship as well as serving lots of jail time.

2. Holding A Policy Level Position In A Foreign Country

If you become an elected official or hold a policy-level position (like an ambassador, cabinet minister, or any high level administrative position where you make government policy) in your native country or a foreign country, you run the risk of losing your US citizenship. On the other hand, if you hold a non-policy level job like working in your native country’s embassy or working for your native country’s government in an advisory or purely administrative capacity, you run little risk of jeopardizing your US citizenship. For further information, see the State Department’s circular: ADVICE ABOUT POSSIBLE LOSS OF U.S. CITIZENSHIP AND SEEKING PUBLIC OFFICE IN A FOREIGN STATE.

3. Serving In Your Native Country’s Armed Forces If That Country Is Engaged In Hostilities Or At War With The United States

If your native country is engaged in hostile actions or is at war with America you need to be extremely careful. The US government will attempt to take away your US citizenship if they find out you are either aiding or serving in your native country’s armed forces in any capacity. Alternatively, the US government could try to nail you with a treason conviction and then strip you of your US citizenship.

4. Serving In Your Native Country’s Armed Forces As An Officer Or A Non-Commissioned Officer

If your native country is not at war with or engaged in hostilities towards the US, then serving in your native country’s armed forces is OK as long as you are not an officer or non-commissioned officer (usually the rank of sergeant or above). Serving as a civilian worker in your native country’s armed forces, or serving as an enlisted man or women are generally acceptable. For further information, see the State Department’s circular: ADVICE ABOUT POSSIBLE LOSS OF U.S. CITIZENSHIP AND FOREIGN MILITARY SERVICE.

The State Department has set several administrative guidelines for dual citizens to follow in order to avoid losing their US citizenship ( ADVICE ABOUT POSSIBLE LOSS OF U.S. CITIZENSHIP AND DUAL NATIONALITY ). The four reasons for losing US citizenship cited above were taken from these guidelines. We strongly suggest that you carefully review these guidelines if you are planning on maintaining dual citizenship. As you review the guidelines keep in mind that the State Department is primarily referring to native-born US citizens who become dual citizens by being naturalized in another foreign country. The guidelines are also applicable to naturalized US citizens who maintain their original citizenship.

5. Lying To The USCIS During The Naturalization Process

If you deliberately withheld information from or misrepresented information given to the USCIS or INS when filing your N-400, the USCIS may cancel your Certificate of Naturalization and revoke your US citizenship. This includes withholding information and misrepresenting yourself during your naturalization interview or oath ceremony. If your Certificate of Naturalization is cancelled and your US citizenship revoked, you may also find yourself facing criminal prosecution as well as deportation proceedings.

For example, if you lived outside the country for four months and deliberately omitted this absence from your N-400 and the USCIS finds out about it after you’re naturalized, they could move to have your Certificate of Naturalization cancelled. All they would need to show is that your absence would have disqualifed you from or materially affected your naturalization due to the “physical presence in the United States” requirement for naturalization applicants.

You may also lose your US citizenship if you withheld information or misled the USCIS or INS when becoming a permanent resident. If within five years of becoming a permanent resident, the USCIS finds out that you withheld information from them or misled them in order to obtain your green card, the USCIS may also strip you of your US citizenship. Of course, after five years from becoming a permanent resident, the only way the USCIS would be able to take away your US citizenship would be if you withheld or misrepresented yourself during the naturalization process.

The above examples illustrates why you need to be both truthful and accurate when filing for naturalization and permanent residency. You don’t want to give the USCIS any ammunition they could use against you later if they or someone else (like a politician or government bureaucrat) is looking for any means to get rid of you.

6. Refusal To Testify Before Congress About Your Subversive Activities

We included this legal provision for completeness. If you refuse to testify before Congress within ten years of being naturalized regarding your involvement in any subversive activities, the Attorney General can move to have your US citizenship revoked [ 8 USC 1451(a) ]. Subversive activities are not well defined but include activities such as spying, belonging to a terrorist or other organization wanting to overthrow the US, or other activities aimed at undermining our government [50 USC 783 & 843, 18 USC Ch. 115]. Of course, if you do testify before Congress about your subversive activities, you may still lose your citizenship if your testimony is later used to convict you of treason.

US Courts and Immigration Attorneys as Safeguards

Fortunately, it’s not as easy to take away your citizenship and Certificate of Naturalization as the law reads. Even if you were not entirely truthful or forthcoming during the naturalization process, the USCIS just can’t arbitrarily revoke your citizenship. Citizenship is one of those fundamental rights that our third branch of government (the judicial branch) takes very seriously. It appears the USCIS runs into difficulty with the federal courts when the USCIS revokes someone’s citizenship without giving the accused his or her day in court (no matter how blatant the violation of the law, see - INJUNCTION OF INS ADMINISTRATIVE DENATURALIZATION PROCEDURE ).

In other words, the only way you are going to lose your US citizenship and Certificate of Naturalization is in a federal court and by a federal judge, who is appointed for life, makes good money, and is answerable to no politician or government bureaucrat no matter how on popular the judge's decision turns out to be.

If any of these situations listed apply to you now or could in the future, we strongly suggest you seek the legal advice of an immigration attorney experienced in US citizenship law. Your US citizenship is too valuable to risk losing because you don’t fully understand the law and the possible consequences of your actions. Here is a brief listing of websites for immigration attorneys:

American Immigration Lawyers Association ILW.com: The Immigration Portal

Open Directory (Google) - Immigration Lawyers

Voluntarily Losing Your US Citizenship (Renunciation)

After becoming a naturalized US citizen, you always have the option of renouncing your US citizenship. Beware though, if you renounce US citizenship, you will most likely be barred from living in the United States (there are exceptions), and can never become a US citizen again.

In order to renounce your US citizenship, you have to physically be outside the US and it’s possessions when renouncing. So if you ever plan on renouncing your citizenship, make sure you have a country to live in (no doubts about your citizenship and residency status) and renounce your US citizenship there. For further information, see the State Department’s circular: Renunciation of U.S. Citizenship.

Can a person voluntarily renounce their US citizenship and still live in the US? Can you get your green card back or a new green card? The answer to these questions is technically yes, but it is going to be a legally complicated process. You will most definitely need the advice and help of an immigration attorney to attempt such a legal maneuver. You will still have to renounce your US citizenship outside the US, and then need some type of visa or immigration papers to return to the US as a resident. Keep in mind, the US government will probably resist you every legal step of the way, and there is no guarantee of success. For further information, see the State Department’s circular: RENUNCIATION OF U.S. CITIZENSHIP BY PERSONS CLAIMING A RIGHT OF RESIDENCE IN THE UNITED STATES.

Voluntarily renouncing your US citizenship should not be taken lightly. Once you renounce your citizenship, it is nearly impossible to get it back. You will lose all the benefits of US citizenship including US residency and your US passport, and you will likely still be held responsible for paying any past, current or future US taxes (which is the primary reason why most people want to renounce their US citizenship). For further information, see the State Department’s circular: LOSS OF NATIONALITY AND TAXATION (please scroll down to this topic after you open this web page).

As a historical matter, U.S. citizenship could be forfeited upon the undertaking of various acts, including naturalization in a foreign state or service in foreign armed forces. In addition, before 1967 it was possible to lose the citizenship due to voting in foreign elections. However, the Supreme Court ruled unconstitutional the provisions of Section 349(a) which provided for loss of nationality by voting in a foreign election in the case Afroyim v. Rusk, 387 U.S. 253,[36] . 8 U.S.C. § 1481 specifically outlines how loss of nationality may occur, which predominantly involves willful acts over the age of 18 with the intention of relinquishing United States nationality. U.S. Supreme Court decisions beginning with Afroyim v. Rusk constitutionally limited the government's capacity to terminate citizenship to those cases in which an individual engaged in conduct with an intention of abandoning their citizenship.
Current U.S. State Department rules automatically assume that an individual does not intend to give up citizenship when performing one of the above potentially expatriating acts. If asked, the individual can always answer that they did not intend to give it up; this is sufficient to retain their citizenship.[37] Hence, the U.S. effectively allows citizens to acquire new citizenships while remaining a U.S. citizen, becoming a dual citizen.
There are also special provisions for persons who are deemed to have renounced citizenship for purposes of avoiding U.S. taxation (which is, in some cases, applicable on certain income for up to ten years after the official loss of citizenship, Internal Revenue Code, section 877), which in theory can result in loss of right to entry into the United States. However, the loss of right of entry (8 U.S.C. § 1182(a)(10)(E)[38]) has never been enforced by the Attorney General since its enactment in 1996. Further, since the creation of the Department of Homeland Security in 2002, the Attorney General (Department of Justice) would no longer be empowered to bar a former U.S. citizen from entering the United States.
No new legislation has modified 8 U.S.C. § 1182(a)(10)(E) to enable the DHS Secretary to bar a former U.S. citizen from entering the United States. Lastly, IRC section 877 and Revenue Rulings was modified in 2004 to discontinue the practice of the Internal Revenue Service issuing rulings to determine if a former U.S. citizen had a tax-related motive in renouncing U.S. citizenship. Instead, IRC section 877 establishes an objective test to determine if the section 877 regime will apply.
If the former U.S. citizen fails one of these objective tests, for ten years after the individual's expatriation they are subject to the 877 regime. In practice, given the various modifications since the enactment of 8 U.S.C. § 1182(a)(10)(E), that the U.S. government has never enforced 8 U.S.C. § 1182(a)(10)(E) since its inception in 1996, a former U.S. citizen may freely travel to the U.S. subject to normal visa restrictions.
After a U.S. citizen satisfies the Department of State procedures, the Department of State issues a Certificate of Loss of Nationality (CLN) signifying that the Department of State has accepted the U.S. Embassy/Consulate's recommendation to allow the renunciation.[39] Renunciation of citizenship includes renunciation of all rights and privileges of citizenship. A person who wants to renounce U.S. citizenship cannot decide to retain some of the privileges of citizenship, as this would be logically inconsistent with the concept of renunciation. Thus, such a person can be said to lack a full understanding of renouncing citizenship and/or lack the necessary intent to renounce citizenship, and the Department of State will not approve a loss of citizenship in such instances.[40]
It is also possible to forfeit U.S. citizenship upon conviction for an act of treason against the United States.[37] Prominent former Nazi officers who acquired American citizenship have also had it revoked if the Office of Special Investigations has been able to prove that the citizenship was obtained by concealing their involvement in war crimes committed by the Nazis in World War II

 d-usa wrote:
You handle it by following the constitution. That is my solution.

If it is just too hard to follow it then the politicians should at least put your money where their mouth is and make an amendment that lets you strip somebodies citizenship if you have the evidence that they are planning or aiding terrorists. Then feel free to blow them up.

This whole "it's too hard to follow the constitution" argument is pretty stupid. It's either worth folllowing, or it's not.

 Ouze wrote:
So far as the legal authority to do this, it's TBH sort of a grey area. Anwar al-Awlaki was both a US citizen, and simultaneously, a member of an organization for which the President of the US had a valid Authorization for the Use of Military Force against.

In my personal opinion, I think the drone strikes against American citizens are unlawful. I think the end result (a dead terrorist) is a desirable goal, but I feel it violates our due process laws, which Congress cannot abrogate short of an amendment. But that's just my lay opinion.

 Dreadclaw69 wrote:

 Ouze wrote:
So far as the legal authority to do this, it's TBH sort of a grey area. Anwar al-Awlaki was both a US citizen, and simultaneously, a member of an organization for which the President of the US had a valid Authorization for the Use of Military Force against.

In my personal opinion, I think the drone strikes against American citizens are unlawful. I think the end result (a dead terrorist) is a desirable goal, but I feel it violates our due process laws, which Congress cannot abrogate short of an amendment. But that's just my lay opinion.

That's close to my thinking too. As an American citizen they are entitled to due process and from what little we know there seems to be fewer legal safeguards for the accused before an order is given to engage via drone. Even if they are members of a terrorist group they are still US citizens, they can only lose their citizenship as described above

 LuciusAR wrote:
Being British I'm an outsider to American law, but I'm struggling to see the controversy here. These guys were not whacked on American soil, they were in foreign terror camps that where directly threatening America. They where, for all intents and purposes, defectors.

Personally I don’t see any ethical quandary regarding the killing of traitors in a war situation.