Napolitano is dead wrong. He gets hung up on this first amendment stuff until all logic escapes him.
He needs to look at his passport, Page 7, Item 13 (c):
Loss of US Citizenship:
“Under certain circumstances, you may lose your US citizenship . . . by serving in the armed forces of a foreign nation”
In case the judge hasn’t been reading the papers, we have been at war for over 10 years with a foreign military power, and we have those guys called soldiers getting shot at by them same foreigners whose command and control element includes the (former) US citizen we just killed.
What nation does Al Queda belong to?
Umm, yeah, it’s true that “Under certain circumstances, you may lose your US citizenship . . . by serving in the armed forces of a foreign nation.” Those certain circumstances are listed in US Code title 8, chapter 12, subchapter III, Part III, § 1481, LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN; VOLUNTARY ACTION; BURDEN OF PROOF; PRESUMPTIONS.
The very first sentence of that law, section a, specifies that the acts which lead to loss of citizenship must be done “with the intention of relinquishing United States nationality.” The law then spells out the various acts, which include “entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or(B) such persons serve as a commissioned or non-commissioned officer”
So, no, serving in the armed forces of a foreign state as an officer (even assuming that Awlaki did so) would not be enough to cause loss of citizenship. The law clearly states that the action must be taken “with the intention of relinquishing United States nationality.” Did Awlaki have such an intention? Difficult to prove now, isn’t it?
In what foreign nation’s armed services did he serve? Terrorism isn’t a nation.
WHICH foreign military power? When was that specified in the declaration of war passed by Congress? As far as I recall we are at war with the tactic of terrorism, which cannot possibly be right. There is NO NAMED ENEMY for us to be at war with, hence no LEGAL war that I can see.