Al-Awlaki’s Can of Worms

http://www.americanthinker.com/2012/03/al-awlakis_can_of_worms.html

March 21, 2012
Al-Awlaki’s Can of Worms
By Cindy Simpson

Anwar al-Awlaki may be dead, but the controversy surrounding his demise is far from over.  Many Americans and members of Congress are still alarmed that a U.S. citizen was ordered assassinated without due process of law. http://thehill.com/blogs/defcon-hill/policy-and-strategy/216263-gop-senator-dismisses-holders-cliffs-notes-explanation-for-killing-citizens-abroad ] And an important point that the Obama administration could make in its defense is contained in a can of worms that the president would probably rather not open.

It is the same can that was noted to exist by the Bush administration and two Supreme Court justices back in 2004 in the case of Hamdi v Rumsfeld, [http://supreme.nolo.com/us/542/03-6696/case.html] although the court’s final decision did not open it either. http://www.theamericanconservative.com/article/2004/sep/27/00021/

The worms in the can: the assertion that al-Awlaki, just like Yaser Esam Hamdi, http://en.wikipedia.org/wiki/Yaser_Esam_Hamdi%5D might not have been a U.S. citizen in the first place.

“Why is Hamdi being treated as a citizen at all?” asked constitutional law expert Dr. John Eastman in his 2004 editorial, “Wrong Question in Hamdi.”  http://www.ashbrook.org/publicat/oped/eastman/04/hamdi.html

The same question was posed regarding al-Awlaki by former congressman Tom Tancredo, [http://dailycaller.com/2011/10/11/anwar-al-awlaki-and-the-perils-of-birthright-citizenship/] one of the signers of an amicus brief [http://www.cfau.org/hamdi/amicusmerits.html] submitted in Hamdi: was al-Awlaki ever really an American citizen?

The Hamdi briefs prepared by the Center for American Unity http://www.cfau.org/hamdi/amicusmerits.html(CAU) and the Eagle Forum [http://www.eagleforum.org/briefs/HAMDI.pdf] argued that the “birthright citizenship” practice — the grant of citizenship to every baby born on U.S. soil, even to non-citizen parents here temporarily or illegally — is not supported by a correct interpretation of the 14th Amendment or application of existing judicial precedent.

Hamdi and al-Awlaki were born in the U.S to temporarily resident non-citizen parents.  It is interesting to consider whether either Hamdi or al-Awlaki, if born elsewhere, would have been eligible to naturalize as U.S. citizens.  Current immigration law places even “ideological restrictions” [http://en.wikipedia.org/wiki/Ideological_restrictions_on_naturalization_in_U.S._law]  on naturalization.

[note by nash:  At some point in the past, some fool in the executive branch, perhaps an Attorney General, or some head of the INS or the State Dept. ignorantly made the mindless leap of presumption that the 14th Amendment’s requirement that those born in the U.S. must be subject to its jurisdiction for citizenship to be attributed to them, and that person assumed falsely that the jurisdiction referred to was related to civil jurisdiction -which foreign diplomats are immune to, instead of political jurisdiction, -which all non-resident Visa Card foreigners are immune to.  Otherwise the US government could conscript them right into the US military, including the Army or Marine Corps infantry and send them into battle against their will and that of their government.  That is totally contrary to the historic tradition of the U.S. government.  The amendment’s jurisdiction refers to the full authority of the federal government over US citizens and US immigrants, -not civil jurisdiction.  Even foreign diplomats are under the civil jurisdiction of the United States and each individual state that they enter just like everyone else, -the difference being that they are not subject to prosecution or punishment for breaking the laws that they are required to obey.

Once that falsely based policy was mandated for application to all babies born on US soil, then the nation was placed on a one-way street.  From then, and going forward, that bastardized policy was the only policy allowed for all the officers of the government to implement.  So even if someone with a brain took over the Attorney General’s office and sought to rein in and cancel that policy, it would be like stopping a car going a hundred miles an hour by using only down-shifting because it had no breaks.  The whine of the transmission and the stress placed on it would be analogous to the whine of the “open borders” radicals and the vitriol of those who espouse unlimited statutory and judicial constraints on who is deemed to be a US citizen.  The blowback would be enormous because it would not only impact the citizenship of those born today but also all those born in the past and assumed to be citizens merely because their mother was temporarily or illegally in the United States though never under its jurisdiction.
For the federal government to reverse itself, even in order to right a stupid and baseless policy, would result in an enormous amount of damage to its reputation and all those who embraced or accepted that policy and sheepishly implemented it.  It would mean that they all were wrong, and their actions were in violation of the actual meaning of the 14th Amendment and the judicial rulings supporting its intended interpretation. Everyone would look like a fool, and even though they are fools and act foolishly, they all have male egos that they wouldn’t want to suffer because of being willing cogs in an illegitimate machine.]

And while the process of naturalization requires renouncement of former foreign citizenship, birthright citizen babies born with the additional citizenship of their parents are allowed to retain dual citizenship for life.

Both Hamdi and al-Awlaki were “birthright” [native-born] and dual citizens.

Dual citizenship, a sort of privileged “supra citizen” status, essentially enables a person to alternate between nationalities depending on the circumstances — a status some experts characterize as “civic bigamy.” [http://www.cis.org/node/260]   The State Department notes [http://travel.state.gov/travel/cis_pa_tw/cis/cis_1753.html] that “dual nationals owe allegiance to both the United States and the foreign country” and recognizes the security clearance implications. http://careers.state.gov/uploads/7a/3e/7a3e09941d0d9861c0906b45b2af86d2/DualCitizenship.pdf  By their actions, both Hamdi and al-Awlaki obviously exhibited an allegiance that was not to America — that is, until they were officially classified as “enemy combatants,” and it became advantageous for them to claim U.S. citizenship with its habeas corpus rights.

Imagine how difficult it would be to hold a competition in which a team player could switch sides, whenever he chose.  Or suppose that either team captain could assert the right to forcibly draft players.  Then imagine if the conflict was not a game, but real war.

“War is all about taking sides.  Unless of course, you can’t, because you belong on both sides,” remarked Francis Stead Sellers in her article, “When Conflict Focuses on Citizenship.” http://aliciapatterson.org/stories/when-conflict-focuses-citizenship

Experts argue that the birthright practice and the dual citizenship it creates undermine the original intent of the 14th Amendment.  A strict interpretation of the phrase “subject to the jurisdiction” as alluding to allegiance and not as superfluous to “born in the country” would prevent such conflicts in citizenship.  The CAU amicus brief in Hamdi noted:

Sen. Howard, sponsor and author of the Citizenship Clause, when questioned about the meaning of “jurisdiction,” responded that the phrase was intended to be read as meaning “not owing allegiance to anybody else”… Sen. Trumbull, Chairman of the Judiciary Committee…noted that even “partial allegiance if you please, to some other government” is sufficient to disqualify a person under the jurisdiction requirement.  [note: the truth is not unknown but following it would involve overthrowing at least several generations of federal practice in violation of the true meaning of jurisdiction, -which today is not simply ignorantly ignored, but willfully ignored.]

The law of most countries (including the U.S.) grants citizenship to the children born abroad of its citizens.  Thus, a child born in the U.S. to alien parents is born with allegiance to some other government — the government of its parents.

Ultimately, the Hamdi court neglected to address the citizenship question and ruled that the Executive Branch did not have the power to indefinitely hold a U.S. citizen without due process.  Although Justice Antonin Scalia did not elaborate on his usage of “presumed” in describing the citizenship of Hamdi in his dissent (joined by Justice John Paul Stevens), the government’s Respondent brief [http://www.oyez.org/sites/default/files/cases/2000-2009/2003/2003_03_6696/briefs/Respondent%27s%20brief.pdf] and both amicus briefs referenced above included the same terminology.

As for the ordered assassination of “presumed” citizen al-Awlaki, even liberal commentators like Leonard Pitts are still outraged over Obama’s lack of regard for the law, although few journalists seemed to notice that Obama and his defense team turned their backs on legal procedure and the judiciary of a state in recent ballot challenge hearings.  The Georgia challenges argued that Obama, with dual citizenship because of his non-citizen father, was not constitutionally eligible for the presidency as a natural born citizen. http://www.wnd.com/2010/08/195441/

The judge’s decision, upheld by Georgia’s Secretary of State and on appeal by the Superior Court, essentially held that every baby born on U.S. soil is a “natural born” citizen — regardless of the citizenship, legal or illegal status, and permanent or temporary domicile of either of its parents.

While many have argued that Obama’s natural born eligibility is supported by the fact that he had a U.S. citizen mother, the Georgia judge ruled that no citizen parents are necessary — essentially putting anchor babies; “birth tourist” babies [ http://rockcenter.msnbc.msn.com/_news/2011/10/28/8511587-born-in-the-usa-birth-tourists-get-instant-us-citizenship ]; and those like Obama, with his dual citizenship and only one citizen parent, on the same “natural born” bus.

Whether the mainstream recognized it or not, the Georgia ballot challenges brought both the topic of the grant of citizenship and the inextricably related definition of natural born eligibility into the spotlight.

The assassination of al-Awlaki may ultimately bring into focus the same important and unavoidable discussion.

Rep. Lamar Smith, the current House Judiciary chairman, signed the Hamdi amicus brief in 2004 along with Tancredo.  Even Harry Reid, back in 1993 in his bill proposing a curtailment of the birthright practice, [http://24ahead.com/harry-reids-strong-1993-immigration-bill-would-have-blocked] asserted that citizenship should not be granted “solely by reason of physical presence within the United States at the moment of birth.”

No matter how famous the birth certificate or how many newspaper birth announcements.

Was al-Awlaki really a citizen?  Was he a “natural born” citizen?  Who’s driving that “natural born” bus, anyway?

This is likely a discussion that Obama would rather not have, as he steers clear of that can of worms.

Page Printed from: http://www.americanthinker.com/articles/../2012/03/al-awlakis_can_of_worms.html at March 24, 2012 – 01:22:45 AM CDT

[Anyone can be deemed to be a US citizen if the government follows illegitimate precedence instead of the actual law, but doing a 180% reversal is almost impossible to bureaucrats and politicians.  Just like stopping deficit spending is impossible for them, -their behavior is locked-in by the forces propelling the train forward.  To stop the train, much less reverse its course, if a herculean task, but we don’t have any Hercules leading any segment of our government.  AN]

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