This won’t be as exciting or informative as the title suggests, apologies [although it turns out I have said rather more than I was going to; you can read an even longer version of my views at SSRN here]. The front page of the Washington Post carries a story from Dana Priest on US military and intelligence agencies’ involvement in Yemen (Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, WP, Wed., January 27, 2009, A1). It is very well sourced and quite even-handed; in particular, the story does not spread the current journalistic meme, a la Eric Schmitt, of a “vengeance” campaign by the CIA. It refers in part to the US, via the US military’s Joint Special Operations Command (JSOC), adding a US citizen, a radical Islamist cleric, to its capture-or-kill list:
As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said. The officials, like others interviewed for this article, spoke on the condition of anonymity because of the sensitivity of the operations.
Several VC readers have emailed to ask about the lawfulness of targeting a US citizen – in this instance, referring to the US military’s target list. I understand there has been some blog commentary on it, particularly on the question of whether it is somehow unconstitutional so to target; I haven’t read it so won’t try to be specific. I’m trying to reconstruct what I lost on my computer on, as it happens, targeted killing yesterday, so I don’t have time to answer this here. Apologies, just swamped. I’ll instead invite VC conspirators to talk to the constitutional questions, if they are inclined.
I will say in conclusory fashion that, no, it is not somehow obviously unconstitutional or unlawful under domestic law for the President, following procedures with respect to either clandestine military operations or covert operations by the CIA, to designate someone as subject to a kill order under either military or CIA operations, even a US citizen abroad. Reid v. Covert and related lines of cases address US citizens, such as US civilian dependents of military personnel abroad, who are within the US justice system even when abroad, and the question is about the kind of justice system that applies. The US citizens in those cases are not in any sense on the “other side” for purposes of determining their constitutional rights.
The situation of Anwar al-Aulaqi is quite different, obviously. The frame is not one of US citizen abroad, in an American judicial procedure – can it be a court martial or military court lacking a jury, for example, for a civilian? Putting him on the kill-or-capture list, however, can be framed as a legal matter in two different ways – and although neither affords him constitutional rights, the implications differ.
One is what I would guess US lawyers inside the military and the intelligence community have done. They presumably characterize him as an enemy combatant who is part of the “enemy” terrorist organizations; no requirement that he actually take up arms; his meetings with his confreres is more than adequate to fulfil the requirements of combatantcy under the terms of the “armed conflict” with Al Qaeda and affiliates. This would suffice, under both domestic and international law as the US executive, but also the Supreme Court, have defined the conflict. (But would be/is much disputed by many of the international law community.)
The question is, what difference, if any, does it make that he is a US citizen? Answer, as a combatant and therefore as a person subject to being targeted, none. You can target him like any other combatant.
Presumably the argument would also be made in the case of capture, viz., his citizen status nets him nothing special; he is an unprivileged belligerent, etc. I assume this is what the Obama administration would argue were he captured, irrespective of what they actually decided to do with him as a political or policy matter, and in my estimation the courts would go along with this, as a matter of detention. Perhaps I am wrong about what Justice Kennedy would rule if it were a case of capture and detention – but I frankly cannot imagine that the SCOTUS would say that targeting standards of a combatant – even one not actually bearing arms – would be any different US citizen or no. It is also very doubtful that the SCOTUS would quarrel with the characterization of Anwar al-Aulaqi as a combatant, despite not carrying arms. Hanging around for meetings in Al Qaeda in the Arabian Peninsula would be quite enough.
Second. I realize that this way of framing things – combatant, targeting of – is very attractive from a legal standpoint, particularly in this kind of case. The problem with it is that it is too narrow a legal justification. It is not actually what the President and the intelligence community mean as they expand – sensibly, correctly, the hugely positive innovation of the Obama administration in responding to terrorists “on-offense” in my view, though I grant your mileage may differ. The reason why is that although from a domestic law standpoint, it is easy, in the case of any group that names itself “Al Qaeda –” to say that the US is in an armed conflict with it. Every branch of the US government has accepted this as an armed conflict.
From an international law standpoint, you can make it out as an armed conflict, however, only insofar as you count the armed conflict as the Bush administration did – a global war on terror. A war in a legal sense without territorial restriction, a function solely of where targets – whose (legally correctly) targetable activities would not be limited to carrying arms by any means – happened to be located anywhere in the world. If the armed conflict is global in that sense, then combatants can be located and targeted anywhere – presumably subject to prudential rules that distinguish between failed and ungoverned places and elsewhere. As a practical matter, this global characterization had the virtue of being an accurate strategic frame – a global and prolonged struggle, like the Cold War, with great virtue seeing it as war from a strategic vantage point. But as a legal matter, it was neither true as a matter of ordinary laws of war nor actually faithful to how the Bush administration conducted it.
Meaning: The Bush administration was not interested, for obvious reasons, in actually conducting hostilities in a zillion places worldwide. What it wanted was have available to it the legal incidents of a condition of armed conflict when it sought to detain, kill, capture, etc. Which is to say, it wanted the legal incidents that attach to actual conduct of hostilities even in circumstances where it had no intention or desire to conduct any. This was disingenuous and a bad legal move – and I say this, obviously, as a strong national security conservative generally highly supportive of the Bush administration’s war on terror stance.
One sees the attractiveness of the frame – if you see it strategically as a war, and a global one, then shouldn’t your legal frame follow your strategy? But the Cold War was very usefully seen as a war in strategic, global terms – yet we never saw every moment, everywhere in confrontation with the Soviets over forty years to be a legal armed conflict governed by rules that were supposed to apply in the actual conduct of hostilities. The actual law of armed conflict applied only when there were … actual armed conflicts in actual places and theatres.
Moreover, as a general legal matter, speaking as a laws of war scholar, my understanding of the laws of war is that they apply to a conflict with a non-state actor only when certain threshold conditions indicating that hostilities have risen to some level that it is an armed conflict, and not civil disturbances or any else. In the case of state-state conflict, the Geneva Conventions have a formal statement of conditions that triggers them in (nearly) any state-state confrontation of state armed forces. In the case of non-state actors, there is a customary law standard, to which the US agrees, that involves – without getting technical – to levels of fighting that are sustained, on-going, reach a certain threshold of, well, actual fighting and hostilities. Individual incidents of targeted killing will not actually meet that threshold in many instances. Which is to say, unless you adopt a “global” standard for aggregating all the violence together as a single conflict, you won’t have instances of the use of force in many, many instances of targeted killing that rise to the level of an armed conflict so to trigger application of the rules of armed conflict. (This is perhaps the one point on which I agree with Professor Mary Ellen O’Connell.)
Why does it matter that you haven’t reached that threshold when you target someone – US citizen or alien? If it’s not an armed conflict, then the very idea of combatancy does not apply. Let me skip over a lot of other stuff and simply say – that is the risk, the fundamental problem, of the form of legal analysis that successive US governments appear (we know very little about the presumed internal legal opinions) to have adopted as jihadist groups arose in the 1990s to now. We’ve been talking about the justification being combatancy, but there might not be an armed conflict so as to create combatants.
Which is why I have been arguing that the US needs to recover the traditional basis on which it has always gone after terrorists and non-state actors, and used force in the whole post-war period. That is the international law doctrine of self defense, with its domestic law cognate as recognized in the CIA statute of vital “national security” under a finding and orders of the President. The truth is, that’s what the Obama administration is doing when it targets Anwar al-Aulaqi, undertakes clandestine and covert ops in various places – its targeted killings, using special forces or CIA agents or UAVs – it is engaging in uses of force under the customary law of self-defense, and domestically under the processes and oversight set out in the CIA enabling statutes.
That doctrine of self-defense is not merely discretionary or standardless – it is premised on the customary law requirements of necessity (in making a decision to target an individual, US citizen or not) and proportionality (whether, considered against the value of the target, likely collateral damage is permissible). The collateral damage standard under proportionality could presumably not be any lower than the equivalent armed conflict standard. It is actually what the Obama administration, the Bush administration, and the Clinton administration meant when they undertook these kinds of uses of force – and the insistence of justifying all these things under armed conflict law weakens the core of the laws of war. Better to call it by the category we have always meant – the international law of self-defense, and its domestic law cognate of procedures and oversight by which the Fifth Function, so-called, of uses of force for vital national security, is carried out.
All that said, the involvement of US citizens in jihadist terrorist groups is going to grow – in both in-US plots and, as in this case, someone who has showed up at AQAP HQ. I don’t suppose that this radical cleric has any more constitutional right not to be targeted than, for example, a US nuclear weapons scientist defecting to the Soviet Union in the 1960s would have against CIA agents shooting him as he made his way through East Berlin. There is a procedure in US domestic law by which the Executive makes these decisions and the Legislature undertakes oversight.
That oversight procedure would likely benefit from tightening – as I have elsewhere argued, the CIA needs to have the assurance of two things (a) that if accused by Baltasar Garzon of extrajudicial execution in some Spanish court, the Congressional leaders of each party would be entirely implicated, in documents and video, in the decision and (b) that the necessary briefings to ensure that result could somehow be kept out of the hands of Al Qaeda, as in, remain confidential and not be leaked to NYT reporters who know at least two things: no Pulitzer has even been won protecting the national security agencies and some have been won leaking their secrets. Reports that laptops recovered in the raid that Priest also discusses, in Somalia a few months back, contained catalogued Congressional testimony on US counterterrorism makes (b) unlikely; Speaker Pelosi’s discomfiture at having been caught out dissembling about how much she had been briefed on will, in the nature of Congress, ensures that (a) is also unlikley, as Congress seeks to know as little as it can get away with about these most vital matters, at least if knowing means any form of accountability.
(Now I am really, really out of time, so I will try to go back and reread this to see if I think I made any glaring errors of substance or writing, but it won’t be til much later, if at all. Treat this as first draft, although conclusory. I welcome thoughts from the Conspirators, particularly on the constitutional law questions.)
ShelbyC says:
Is there any constitutional difference in the exercise of war powers against enemy citizens vs non-citizens? We fought an entire war on US soil against an enemy who consisted entirely of US citizens. And wan’t one of the executed German sateteurs a US citizen?
January 27, 2010, 5:44 pmHouston Lawyer says:
If he came here and peacefully submitted to incarceration, he could be tried for treason. Short of that, he’s just another person fighting for the enemy. His citizenship seems to make him a more valuable target, not a protected one.
January 27, 2010, 6:01 pmMartinned says:
I seem to remember that, too. Either way, it sounds right.
That’s why it is so problematic that there is no adequate legal framework for this situation. As long as US authorities keep pretending this is a war when it is obviously not, they have no incentive to flesh out the implications of the fact that this guy is a US citizen. They can simply refer to Eisenträger and leave it to that.
BTW, I agree with most of what is in this post, subject to the proviso that I am not necessarily enthusiastic about some of the legal premises that follow from US constitutional law, and that are applied here. For example, I’d prefer a perspective where the constitution follows the flag, unless there is a good reason for it not to. (Or, better yet, bring armed conflict entirely within the constitutional framework, as was obviously done during the Civil War.)
I am also used to reading some positive obligations for the state into the constitutional right to life under art. 2 ECHR, which might suggest that the state should refrain from killing its own citizens if it can be avoided. But on that one I’m not sure, and in any case it has nothing to do with US constitutional law as it is.
January 27, 2010, 6:02 pmMartinned says:
Well, “fighting” and “enemy” are a bit dubious here. Otherwise, you’re right.
January 27, 2010, 6:03 pmDangerMouse says:
Well, “fighting” and “enemy” are a bit dubious here. Otherwise, you’re right.
Martinned is friends with al-Qaeda members, apparently.
January 27, 2010, 6:14 pmKharn says:
Well, if he’d only stop by the nearest embassy to surrender in response to a warrant for treason…
January 27, 2010, 6:19 pmPersonFromPorlock says:
The Union had no trouble at all ‘targeting’ Confederate forces it (effectively) claimed were still Union citizens.
January 27, 2010, 6:30 pmMartinned says:
I know… Isn’t it fascinating how all people who disagree with you just happen to also be terrorist-cuddling surrender monkeys?
But seriously, a person can’t be fighting a war if there is no war. No war = no fighting. (At least not in the sense the word was used by Houston Lawyer.) Similarly, a person cannot be our enemy if the war he thinks he is a part of only exists in his head.
Actually, that’s an interesting question, too. The Article III definition of treason gives a few alternatives, but I’m not sure if any of them apply if there is no war. (Or, for that matter, whether the decision as to whether there is a war or not is for the president or the courts to make.)
January 27, 2010, 6:33 pmArthurKirkland says:
Does anyone know whether our batting average in this regard is any better than our batting average was with respect to Guantanamo detainees or extraordinary renditions?
It must be better than our batting average against bin Laden, but that isn’t saying much.
Is there any accountability — for informants, handling officers, equipment operators, those who authorize firing — when one of these adventures turns into a misadventure, particularly when innocents are killed by those operating far-away screens?
Has anyone assessed whether these operations cause more good than harm, or vice versa?
January 27, 2010, 6:45 pmpetB says:
Do I understand the above correctly that it argues that state can kill its enemies?
We had a bit of these here in eastern Europe in the last 50+ years, but I did not know it was lawful.
January 27, 2010, 6:50 pmorca says:
If the U.S. military ever conducted that kind of analysis, the Taliban and probably al Queada would never have existed in the first place.
January 27, 2010, 6:51 pmArthurKirkland says:
Well put. As Gust Avrakotos would have observed: “We’ve seen.”
January 27, 2010, 6:54 pmShelbyC says:
The government assessing whether or not a government action causes more harm than good? That’s a pretty novel idea.
January 27, 2010, 6:59 pmChris Travers says:
Color me sceptical.
I think it is one thing, when trying to wage a war, to target those who are caught on the battlefield (narrowly defined) in direct assistance of the enemy, or who are sabotaging military efforts directly through military force.
However, merely planning with “the enemy” shouldn’t be enough since I think there is a Constitutional right to associate with executive-designated enemies (absent actual declarations of war) to further lawful causes (I hope the Humanitarian Law Project wins their consolidated lawsuits).
If read broadly, this would allow the executive to target any US citizen travelling abroad for assassination on their mere say-so. That doesn’t seem to my mind to be in line with the due process guarantee in the fifth amendment.
In short I would argue that the line should be drawn where:
1) Someone is caught in the act of enemy MILITARY activity (not mere association), or has confessed to such activity (similar to the Qurin case) or
2) is incidentally killed or harmed by targetting others.
I think it would be necessary to draw some line other than an expansive line. Otherwise political opponents could be targetted whenever they would be outside the country.
January 27, 2010, 7:24 pmMark Field says:
petB nailed it.
January 27, 2010, 7:27 pmEH says:
That’s why it is so problematic that there is no adequate legal framework for this situation.
Bug…or feature?
January 27, 2010, 7:29 pmChris Travers says:
So why not just have summary executions for individuals even on US soil?
January 27, 2010, 7:30 pmHoward Gilbert says:
On 9/10/01 Afghanistan (a member of the UN, a signatory to the Geneva Convention) was effectively controlled by a government recognized only by Pakistan. We officially recognized a President who controlled nothing. The (Southern) Army of Afghanistan was a mosaic of tribal militia, Pakistani military men, and foreign volunteers. The largest group of foreigners was run by al Qaeda, who recruited, trained, and equipped fighters in the 055 Brigade. On the side it also, with the knowledge of the Taliban leadership, commissioned small groups of soldiers to conduct terrorist strikes against targets in other countries (African embassies, USS Cole, 9/11).
Eventually the US Congress authorized the President to use military force against the people, organizations, and countries that he determined to have carried out the 9/11 attack and countries that support or harbor them. It was determined that Afghanistan (or at least the 90% of it ruled by the Southern government) was covered as at least harboring and maybe being responsible. At this point there was a state of war between the US and Afghanistan (under international law, although the US Congress had not issued a formal declaration so maybe not in US domestic law). This conflict has never ended. NATO soldiers are still engaged in day to day combat with this original enemy which has never surrendered.
An alternate government has been installed in Kabul and is recognized by the US as the government of Afghanistan, although the former Government is still fighting. It is not clear that this actually changed the legal status of the war. The US originally recognized the non-existent government of one man (President Rabbani) and then transferred our recognition to the current government. At no point did we recognize the enemy government led by the Taliban. However, as the Geneva Convention notes, we are not required to recognize the enemy government in an armed conflict. The Geneva Conventions still apply to the regular army of an unrecognized government. However, when we eventually did recognize a real government that had some actual control over some territory, then the law gets a bit confused.
I have seen nothing in international law that anticipates that a state to state international conflict can transition to a non-state non-international conflict. Well, it happened here and nobody appears to know exactly what that means. I would suggest that the claim that the original state to state international conflict is still active until the fighting ends is as good an interpretation of international law as anything else.
Although Afghanistan is land locked, the first recognizable act of belligerency was a naval battle. A small boat filled with explosives attacked the USS Cole in Aden harbor. This undersores a traditional point that all armed conflicts between countries have been, for several hundred years, world-wide conflicts with regard to the 70% of the world’s surface that is deep water ocean. A war between Afghanistan and the US includes at least the territory of Afghanistan, the territory of the US, and all the world’s international water.
This has nothing to do with the metaphorical Global War on Terror any more than the Cold War was either cold or a war. There is a real war between the armed forces associated with the Taliban army/Mullah Omar plus al Qaeda/Bin Laden and the US and its allies.
Exactly who the enemy is can change from time to time. During WWII Thailand was variously an Axis country or a neutral depending on who was winning (each time that changed, they had a “revolution” and changed sides). The AUMF allows for the President to determine if any country aids or harbors the enemy and then use military force. That then raises the questions of neutrality and non-belligerency.
The nations of the world struggled with workable definitions of neutrality for a long time without making any solid progress. However, while the Hague Agreements render the territory of a neutral inviolate, they also require the neutral to prevent any military activity by any party. A country that claims neutrality while harboring enemy military activity and does nothing to stop it cannot claim the protections of neutrality.
There is a bit more detail about the interaction of world wide warfare and neutrality in the Hague Agreements on naval warfare than there is in land warfare. In those days, land warfare typically meant a real invasion. However, a warship could dock at any time. The world got a refresher course in maritime law when the Graf Spee docked at Montevideo during the Battle of the River Plate. A warship can only stay in a neutral port for 24 hours and can only make repairs to render itself seaworthy. They key point, however, was that the local government was willing to enforce its neutrality and intern the crew for the duration of hostilities if the ship did not leave within a reasonable amount of time.
The same cannot be said of the Governments of Yemen, Somalia, and some other countries. They are not in a position to enforce neutrality. Today small terrorist units occupy sections of countries in something between traditional violations of neutrality in land and sea warfare.
However, it is clear that once the level of hostilities rises to the level of an armed conflict between the two parties, then it remains an armed conflict wherever these two parties dispatch armed forces on land or sea. It is reasonable to regard this as a world wide conflict the world wide forces of two specific parties. When the enemy sends an armed force to establish a military base within the ungoverned territory of a previously neutral country, that does not initiate some new local conflict that must within that one country rise to the level of an open armed conflict before the laws of war apply. It is an extension of the existing armed conflict to new territory. Territory that is not really neutral, not exactly controlled by a real government, but not legally open to free conflict like international water.
In other words, there is not a single item in this entire conflict that fits nicely within any of the definitions and rules of international law. The problem is that too many people start with the definitions of international law and try to take facts that don’t fit and cram them in somehow. It is a war that isn’t a war between countries that are not all countries, in a place that is not really well defined, that has always been world wide, but sporadically so.
You may be right that the only sane thing is to give up on this mess and find some other legal principle like “self-defense” that we can present cleanly. I am not, however, convinced that just because the application of the laws of armed conflict are sloppy that we cannot make them work. I would agree that we have an obligation to clarify our legal position. Since reality does not fit cleanly within the pre-existing rules of international, all sorts of people will disagree with our position. However, if we are willing to cleanly and consistently define our position, and it is as reasonably consistent with international law as reality allows, then we should be prepared to turn to the international critics and tell them to go f— themselves.
January 27, 2010, 7:37 pmChrisTS says:
This issue is also being discussed on Balkanization, for those who are interested.
January 27, 2010, 8:03 pmneurodoc says:
Thank you for a very informative post. And I fully concur in your conclusion.
January 27, 2010, 8:29 pmOren says:
Well, he can be an individual that gives material assistance to a group responsible for 9/11 and thus fall within the AUMF. That is, he can be an ‘enemy’ within the statutory framework that Congress laid down when it authorized military force.
That’s not precisely your meaning, of course, but it’s worth mentioning.
January 27, 2010, 8:37 pmJames N. Gibson says:
Your not joking. When World War II began Holland expected to be neutral and that Germany would respect that neutrality. It didn’t stop them from being invaded and occupied until the British rolled in, in 1944.
As to the earlier comment regarding the Saboteur in WWII, the leader- George Dasch was a naturalized American Citizen given he was born in Germany and had served in the German Army in World War One. He then immigrated to the US, joined the US Army for one year and then bought his way out of service. His sentence was commuted from death to 30 years as was Burger’s (another saboteur) because they turned themselves in.
January 27, 2010, 8:44 pmJames N. Gibson says:
I think this would be a good subject to discuss the Saint Patrick Battalion that served with the Mexican Army during the Mexican American War. The men were all US Army deserters of Irish descent. Their official issue with the US at that time was abuse by Protestant officers in the Army, the general treatment of Catholics in America, and particularly the way irish Immigrants were treated. Unofficially, they received higher pay and large land grants from the Mexican government for service.
By the time of the war an estimated 200 men were in the unit. They suffered severe casualties at Churubusco, now called the waterloo of the Mexican Army. The surviving members of the battalion were interned after the war and 16 were hanged as traitors by the US Army.
January 27, 2010, 9:02 pmRicardo says:
This sounds right to me. U.S. citizens fought on the other side during WWII and that never stopped the U.S. government from either killing them on the battlefield (or on bombing raids) or capturing them and holding them as POWs. It seems that as long as targeted killing is legal under U.S. law, it shouldn’t make much of a difference whether the targets happen to be U.S. citizens or not.
When is it the case that something becomes “obviously” a war? A state of war can exist even when there is no literal armed combat taking place on the ground.
I also question your comment about the U.S. Civil War being fought under a Constitutional framework. It’s true that the writ of habeas corpus was suspended for the duration of the war allowing indefinite detention, but trial by military commission of civilians is something never explicitly authorized by the Constitution. To get that result, you have to appeal to tradition or “the Constitution is not a suicide pact”-style reasoning. My own understanding of the legal history of the Civil War (which comes mostly from the excellent book “The Fate of Liberty”) is that it rather was fought as if it was an international conflict. Lincoln insisted captured Confederate soldiers were treated as foreign prisoners of war even though there was a case for not doing so.
January 27, 2010, 9:18 pmMartinned says:
Sure. Then again, the “military force” authorised by the AUMF isn’t necessarily war. A lot of things are being done that have been so justified that fall short of the “levels of fighting that are sustained, on-going, reach a certain threshold of, well, actual fighting and hostilities” (quoting the OP), i.e. that fall short of war. In reality, military force is a sliding scale, but the law doesn’t do sliding scales. (It’s murder or it’s not, etc.) The law draws the line between war and everything else at a certain place, and the question is whether the US Congress or the US President can draw it somewhere else. (Hence my earlier question about Article III.)
January 27, 2010, 9:20 pmMartinned says:
Two sovereign states fighting with organised and uniformed armies is “obviously” a war. If you take elements away from that, the conflict in question becomes ever less of a war. In order for a conflict to be a war, the fighting has to be sustained and of sufficient intensity, between organisations properly so called. Al Qaeda organising terrorist attacks does not suffice to make them party to a war, since – even if a terrorist attack can be called fighting at all – it is of insufficient intensity. (Though their aid and comfort to the Taliban probably does make them a party to the war in Afghanistan.)
Anyway, I agree with prof. Anderson that it should be possible to formulate some theory that explains why the US have the right to go after this guy in this way. The laws of war just aren’t it.
As for my comment about the Civil War, I’d argue that the things done then have become part of the unwritten constitutional law of the US to the extent that they weren’t expressly constitutional already. Under such precedents, there is no reason why the Constitution shouldn’t follow the flag, since there is no theory that would make shooting at the enemy in a war somehow unconstitutional, and the same goes for any other legitimate exercise of sovereign power outside the territory of the United States that I can think of. (As noted, it would potentially create a problem in the situation under discussion here, but that’s kinda the point: to maintain some restrictions on what the US government can do even when it acts outside the territory of the United States.)
January 27, 2010, 9:32 pmOren says:
Martinned, I don’t understand the point of your post. Assuming that the US Congress authorizes military force against the target then that target is rightly considered an ‘enemy’ against which military force can be used.
So “enemy” is not dubious here, it is well-defined as “someone within the scope of the AUMF”.
January 27, 2010, 9:36 pmOren says:
Assuming that we accept that it’s not a war but a “armed conflict” of somet type. What then?
Surely one can shoot and kill one’s enemy even in a garden-variety armed conflict.
January 27, 2010, 9:43 pmMartinned says:
I assumed that enemy implied “party to a (potential) war”. As long as we agree that enemy is define more broadly, then I’m perfectly OK with describing this guy as an enemy of the United States.
Not under the laws of war you can’t, since they (by definition) do not apply to things that aren’t wars. As explained in the OP, the Geneva Conventions define what kinds of conflicts they apply to. If the conflict you happen to be involved in is not within that definition, then you’re going to have to find a different legal framework to legitimise your plans under.
That is a problem, because traditionally the assumption has been that if it isn’t war, then it is peace. And if it is peace, then you can’t just go around shooting people, no matter how much they are your enemy. Instead, the lawful thing to do would be to charge this person with treason or some other felony and ask for his extradition. I would argue that, if such a course of action were viable, the US government would be required to take it. Unfortunately, extradition doesn’t seem to be an option here, so the question is whether there is some middle way, some third path, if you will.
Prof. Anderson has argued quite convincingly that the law of self-defense under art. 51 of the UN Charter might provide a source. But that is very tricky, since it seems quite clear that that provision was at least written based on the assumption that the act of self-defense contemplated would be to start a war or to at least fight one. It may well be possible to argue that art. 51 Charter also authorises acts of self defense that are not war, for example on a “greater implies the lesser” theory, but then the US government needs to come out and articulate that theory, explain that that is what they are doing, and what they consider the law on this point to be.
Such a unilateral legal statement is an important part of international law, especially if other states agree. Once such a view obtains sufficient critical mass, it becomes part of the customary laws of war. IIRC, prof. Anderston has been suggesting that the state department reiterate its support for exactly such a statement issued under Bush sr., and never retracted. That sounds like a good idea to me.
January 27, 2010, 10:02 pmOren says:
That’s an odd way to phrase it, to say the least. I would come at it from the other side and assert that the plan is legitimate insofar as there are no provisions (or customary practices) that would forbid it.
January 27, 2010, 10:19 pmRicardo says:
So let’s say a vessel in the high seas fires on a U.S. Navy ship. The U.S. engages in a firefight and takes the survivors as prisoner. Are you saying those prisoners are under no circumstances entitled to Geneva protections since they weren’t involved in a “war” with the U.S.? Or that returning fire is illegal since it is “peacetime”? Other situations involving either hot pursuit or a sudden exchange of fire strike me as similar.
Now, of course, a targeted killing is a different situation but I offered the scenario above as a counterexample. What do you mean by “you can’t just go around shooting people”? That this action would be murder under U.S. law, murder under the law of the country in which the shooting takes place, the violation of a treaty, a crime subject to universal jurisdiction by the ICC or a country like Belgium, or something entirely different?
January 27, 2010, 10:39 pmMark Field says:
Lincoln’s view — which I think is correct — was that suspending the writ suspended the exercise of Constitutional rights. After all, it’s the writ which is the legal means of enforcing those rights; no remedy, no right. Thus, suspension of the writ does mean that Constitutional protections are no longer available.
January 27, 2010, 10:49 pmHoward Gilbert says:
“In order for a conflict to be a war, the fighting has to be sustained and of sufficient intensity.” I suppose the Russians will have to rename the Patriotic War of 1812. There were, of course, large armies and Napoleon suffered a decisive defeat. However, there was no fighting of a sustained intensity. Just a lot of marching, and starving, and freezing, and disease.
Of course, I was unaware of any rule that requires some minimal amount of fighting or else the war is called off. This is apparently the military version of the shot clock in basketball. I thought that wars continued until someone won or they signed a peace treaty. Certainly there are lots of examples of strategic retreats (like the Chinese Long March) that do not end a war but cause the fighting to drop off while one side reorganizes. Good that George Washington crossed the Delaware and attacked Trenton when he did, or else we would have to talk about the First Revolutionary War and the Second Revolutionary War because the fighting might have died off too long during the winter and the first war would have been ended by the referees.
January 27, 2010, 10:53 pmJoe says:
It’s true that the writ of habeas corpus was suspended for the duration of the war
No it wasn’t. It was suspended in certain areas at certain times.
After all, it’s the writ which is the legal means of enforcing those rights; no remedy, no right.
There are political questions now that limits certain federal court remedies. No rights in those areas? Also, if the rights were not violated, you don’t need a remedy. Also, others in the government could “protect” as well. The “protections” were weakened. They might still be available.
January 27, 2010, 11:00 pmJoe says:
At one point, Congress gave Lincoln the power to suspend habeas wherever at his discretion, but he did not do this in an across the board fashion. Habeas was not suspended, e.g., in Boston from 1863-5.
January 27, 2010, 11:10 pmMark Field says:
Lincoln was educated on the Blackstonian principle that for every wrong there was a remedy.
As a practical matter, if you have no remedy, it’s hard to say you have a “right”.
Of course. But the whole point of habeas is to say, in effect, “I’m being held contrary to law”. If there’s no writ available, the consequence is that the government can hold you “against law”. And since the writ covers the full panoply of Constitutional rights, it’s very logical to say that, while it’s suspended, you don’t have them.
January 27, 2010, 11:56 pmRicardo says:
Joe, I never said the writ was suspended in all places at all times for the duration of the war. Just that it was suspended — in other words, that the suspension clause was indeed invoked.
Mark Field, that’s certainly a valid counterargument. I believe the Supreme Court rejected it in Ex Parte Milligan, though. Maybe Milligan is no longer good law or should be overturned but I don’t see the argument that suspension of habeas corpus => authorization of military tribunals of detainees as being a slam dunk.
January 28, 2010, 12:20 amDon Miller says:
On Page 7 of my US Passport, in the Important Information section, #13
Anyway, lots of things there, one of which is serve in the military of a foreign state. Most of the things are predicated on the idea that you intentionally did them with the intent to surrender your citizenship
Would it be possible for Congress to extend this to joining a terrorist organization that is at war with the US?
I was just thinking if the US revoked his citizenship for making war against the US, we wouldn’t have this handwringing wondering if it was okay for the military, or CIA, to try and kill or capture him.
January 28, 2010, 12:30 amOren says:
Current Supreme Court doctrine states that loss of citizenship has to be intentional — you have to join a foreign army (or whatever other statutory provision) with the express intent of relinquishing your citizenship.
January 28, 2010, 12:43 amMike G in Corvallis says:
A naive but honest question: What is the legal status of all those “WANTED — DEAD OR ALIVE” posters featured in so many Western movies? Were they a myth? Were they invaldated by later jurisprudence? Did they apply only to criminals who had been tried, found guilty, sentenced to death, and then escaped custody? (A rather small number of people, I would think.)
January 28, 2010, 1:56 amTruePath says:
The problem here is that these various arguments seem to prove too much.
Predator drowns are big and noticeable but they will surely shrink in size so let’s suppose that in 20 years the US has dragonfly sized flying robots armed with lethal poison darts. When does the government have the right to assassinate you while your visiting the UK?
Does all the president need to do is to certify that you are an enemy terrorist allied with Al Qaeda (assume AUMF hasn’t been repealed)? That seems like an awfully measly protection. Could the president even make such a declaration based on activities that are constitutionally protected (or at least would be if they occurred in the US).
What if you are a journalist who interviewed a suspect Al Qaeda leader in the UK and you are refusing to divulge information about his whereabouts or return home to be jailed for this refusal? What if you take active steps to confuse CIA attempts to infer your source’s location from your notes/activities? Does it make a difference if the suspected terrorist showed you how he trained recruits with guns during your contacts? If not how is this distinguishable from someone who goes to a terrorist training camp but never actually commits an act of violence against the US?
I don’t see how one can draw any principled lines in this area.
—-
Saying the constitution follows the flag renders the constitution practically impotent in this regard. Everyone travels out of the country sometime and this view would basically let the executive simply wait to order your execution until you were out of the country.
I’m really not sure what the rules should be in these situations.
January 28, 2010, 5:16 amTruePath says:
I don’t actually know so don’t take this for gospel but my understanding had always been that such posters simply communicated the fact that a reward would be given for either bringing the person into custody or furnishing proof they were dead.
In other words I presumed it was similar to the situation that an issuer of a bail bond has with respect to a bail jumper, i.e., they get money back either upon the death of the individual or their production to the court but are granted no special rights to slay the bail jumper.
—-
Note that as a matter of incentive such a policy is necessary to encourage apprehension of violent dangerous criminals. After all if the apprehending officers only got the reward for a live suspect then it’s in the suspect’s interest to publisize a policy of violent resistance so the officers have less to gain from an attempted arrest.
January 28, 2010, 5:28 amMartinned says:
There are:
Last time I checked, the US is still a party to the ICCPR, so they can’t just go around killing people. One exception to the ban on deprivation of life is killing in war. Another one is the death penalty (which is the subject of much of the rest of art. 6). The question is whether there are more exceptions still.
That wouldn’t be a war, no. It would be a case of domestic law (i.e. individual) self-defense, as well as a matter governed by the laws of the sea. What you’re describing would be piracy under UNCLOS:
In case of piracy, the victim is most certainly authorised to shoot back, as well as to seize the pirate ship under art. 105 UNCLOS.
I think that prof. Anderson and most commenters would agree with me that the man’s citizenship makes little or no difference. In war or otherwise in self-defence, the US are probably allowed to shoot him.
On the contrary, if the constitution follows the flag, that means that you don’t lose your rights vis-à-vis the US government just because you travel abroad. In other words, if they weren’t allowed to shoot you in a hypothetical civil war type situation that is in all other ways similar to the conflict under consideration, they wouldn’t be allowed to shoot you now.
In a nutshell, that would mean that the question becomes whether this guy did enough to warrant being shot on sight even if he had done them inside the US. Under US law as it is, though, that is not the way it works.
January 28, 2010, 8:15 amHoward Gilbert says:
There are a bunch of expatriating acts (acts cause you to lose your citizenship). One is serving in the army of an enemy state engaged in hostilities with the US. In cases involving completely innocuous actions (voting in a foreign election, filling out some Mexican government form) the Supreme Court ruled that loss of citizenship is too important to be something you do unintentionally. Congress then changed the law to include a requirement that you commit the act with intent to give up citizenship.
However, there are several meanings of intent. Had they left it to the Supreme Court’s decision and not added their own awkward wording, it would have been reasonable to argue before the court that serving in a foreign army at war with the US is an act that implicitly shows intent in the sense of criminal intent. It may not be the intent to give up your citizenship per se, but it is the intent to kill Americans, attach the country, and aid our enemies. That may be intent enough to satisfy the Supreme Court cases, but now that Congress stepped in and screwed up the law it probably is no longer enough. Way to go, Congress.
January 28, 2010, 9:19 amSFC MAC says:
It’s pretty cut and dry. Anwar al-Aulaqi and those like him, crossed the threshold of “citizen” to enemy combatant the day they declared their allegiance to Al Qaeda. Hunt him down and kill the pig. He deserves it.
January 28, 2010, 10:57 amDon Meaker says:
Terrorists are like pirates, the enemies of all mankind. Consorting with pirates should overwhelm any advantage of citizenship.
January 28, 2010, 11:35 amJardinero1 says:
Congress may issue letters of marque and reprisal. I suppose they could be issued against persons or groups. This would cover most non-state actors and belligerents. Once they are issued by the Congress, they are essentially death warrants.
The important thing to remember is that they may only be issued by Congress, not the Executive. No like power is given to the executive by the Constitution except as Commander in Chief. I suppose there is nothing that prevents delegating the execution of such letters to the President. although at the time the Constitution was written, I believe such letters were to be executed by private individuals. I believe that since the founders issued such authority only to the Congress that they in no way intended for the executive, on his own volition, to order executions even in wartime, as commander in chief.
January 28, 2010, 12:58 pmMartinned says:
That raises the pretty cool question of whether letters of marque and reprisal would be lawful under current international law. The definition of piracy I quoted above would probably cover most of this, as long as the ship doing the marquing or reprising is private property.
That argument is certainly pretty, with a ribbon on top, the way (we) lawyers like it. However, I don’t quite think it works. While I don’t know much about the concept of letters of marque or reprisal, I think they are not sufficiently analogous to the targeted killing scenario under discussion here for your argument to work.
January 28, 2010, 1:41 pmMark Field says:
They haven’t been since 1856, though the US has never signed that treaty. See here.
January 28, 2010, 1:55 pmjgreene says:
Let’s STOP overthinking this situation. First screw the lawyers and eliminate them from the process of target selection.
He is an American citizen who has made a decision to join his fellow Muslims as terrorist combatants.
Blow his f***ing ass away! Our ROE should be no mercy, no quarter for these IslamoFascist terrorist combatants wherever they are. Kill them, kill their families and anyone who supports them.
This is a war and about time the Idiots in Washington realized it. But they still don’t even want to admit that the ROE of the enemy are in the words of Mohammed in the Koran and Sira – killing kafirs in jihad is an immediate ticket to heaven and a passle of nubile virgins who will provide what they seem so starved for here on earth – SEX.
January 28, 2010, 2:25 pmOren says:
No, it means we can’t go around killing people arbitrarily. So long as the process is not arbitrary (that is, completely without reason), I don’t see ICCPR6 as being a problem — it certainly doesn’t forbid all killing whatsoever.
January 28, 2010, 2:39 pmJeffB says:
I’d like to make explicit and stubbornly insist upon a few things which seem to me to be unavoidable:
1) The Constitution vests Congress with the power to declare war.
January 28, 2010, 3:17 pm2) Constitutional provisions cannot be altered by statute.
3) Congress has not declared war since December 11, 1941.
4) In light of 1-3, regardless of what Congress may have done or purported to do in the way of authorizing force, it’s constitutionally short of a war declaration and therefore we need not inquire as to the war-time powers of the President, since they have not been activated.
5) The Due Process clause of the 5th Amendment states as plainly as the English language permits that government shall not deprive any person of life without due process of law.
6) A secret, unilateral, unreviewable status determination (i.e. that a person is an “enemy combatant”) by the President does in no way, shape or fashion constitute due process.
Martinned says:
Thanks.
While, in the absence of any real case law on the matter, we’ll never know for sure, I’d offer that your approach works from a seriously generous definition of arbitrariness. Under your definition, the East-German border guards’ shooting at people trying to get across to the West was not arbitrary, and therefore not a violation of art. 6, since it was authorised by East German law. And yet in 2001, the ECtHR approved the conviction of one of those border guards, despite his objection on ex post facto grounds. K.-H. W. v. Germany (2001), par. 94-99 particularly. See also Streletz, Kessler and Krenz v. Germany (2001). (Egon Krenz was the last leader of the GDR.)
In British law, a useful case is BE (Iran) v. Secretary of State for the Home Department, [2008] EWCA Civ 540, a Court of Appeals case from 2008. In the main text, it reads:
The footnote reads:
In the Barbados case of Boyce v. Regina (2004), the Privy Council upheld a law that set a mandatory death penalty for all convicted murderers against a challenge based on, amongst others, art. 6 ICCPR.
The 2004 ECtHR case of Makaratzis v. Greece concerned the use of fire arms by the police. The Court quoted approvingly from the reports of the (since abolished) Human Rights Committe, as well as other UN documents suggesting that the use of deadly force by police, etc., should be restricted based on the principles of proportionality, and be subject to adequate operating procedures. (par. 28-32)
On the basis of this quick review, I’d say that your argument is not without merit, but that killing a terrorist in a situation that is not covered by the laws of war because there is no war is higly likely to be not only unlawful, but also unjust, capricious and unreasonable, unless some adequate legal framework be proposed or unless it really was the only way to avoid a serious and imminent problem.
January 28, 2010, 3:41 pmMartinned says:
True.
Also true.
Not with so many words, no. Then again, I don’t see why it should be necessary for Congress to say the magic words. Apart from the question of whether it is possible to declare war on an NGO, and whether it is possible to declare war on person or persons unknown, I’d say the 2001 AUMF is as clear as day.
See 4.
I’d love to support you on this, but it is simply not the case that the constitution follows the flag in this way, at least not under current SCOTUS case law. Even if it did, the due process clause does not forbid the armed forces from firing on the enemy in a proper war. (Civil War, etc. etc.)
True, but for the present thread irrelevant.
January 28, 2010, 3:46 pmAnthony says:
Actually, I believe a letter of marque was issued to the Goodyear Tire Company during WWII, because a blimp with an armed civilian crew was used to hunt submarines.
The US did not sign the treaty, but during the Civil War, we threatened to treat Confederate privateers as pirates. The issue there was that the US government did not recognize the Confederacy as anything other than an illegal combination against the lawful US government.
January 28, 2010, 4:43 pmRhymes With Right says:
And under the contrary argument, an order to take out particular senior civil or military officers of the Confederate Army would have been illegal. Anyone want to arguing that an order by Lincoln to kill Robert E. Lee or Jefferson Davis would have somehow violated their rights under the US Constitution?
January 28, 2010, 5:27 pmMicha Elyi says:
Thanks folks. Watching you wrestle with the question of how to lawfully treat outlaws was as enjoyable as watching contestants do silly things on a Japanese TV game show. Those game shows are entertaining because it makes concrete the category error the contestans grapple with. (Lawyers have to accomplish the same silliness with words alone.)
January 28, 2010, 5:27 pmRhymes With Right says:
All of this discussion also points out the absurdity of much of international law and its corrosive effests upon the sovereignty and national security of the US and other nations.
January 28, 2010, 5:31 pmChris Travers says:
So do bills of attainder become legal simply because they authorize military force?
January 28, 2010, 6:06 pmChris Travers says:
Who decides? And on what facts?
For that matter if military force is authorized, would it be legal to assassinate him while he is in the US?
January 28, 2010, 6:11 pmMartinned says:
And what if one of those “other nations” perceives a national security threat from someone in the US? Could they send in their drones, too?
January 28, 2010, 6:23 pmChris Travers says:
This leads to the question of whether air strikes in Yemen are part of a proper war.
I don’t think a formal declaration of war is necessary (I think an AUMF might be enough in some narrow circumstances). However, I think such needs to be very narrowly read.
Under what circumstances can the CIA send someone to assassinate someone during a vacation to Toronto? Can the executive merely say “he’s a terrorist?” Or does there need to be court review? Mr Anderson’s approach seems to assume that the executive can do this, in which case anyone who travels internationally is potentially at risk for arbitrary summary execution with the same level of review as occurs before they put Senator Kennedy on the no fly list….
January 28, 2010, 6:35 pmMartinned says:
Personally, I’d draw the line at the battlefield/war zone. As long as you’re in a place where the courts are properly functioning, etc. (cf. Ex parte Milligan), targeted killing would be disproportionate, which is unlawful regardless of the framework deployed.
As for Yemen specifically, I think there is a civil war going on there, i.e. a war in the ius in bello sense. That makes at least some of the provinces in North Yemen, as well as Abyan and Shabwa in the South, part of the battlefield. The more interesting question is whether the US are a party to this war.
January 28, 2010, 7:36 pmRicardo says:
What about a situation where the courts may be functioning but large elements of the police or military are corrupt or disloyal? That was the main concern for Israel in its pursuit of Palestinian terrorists in other countries in the past, I believe. There was a genuine fear that if they filed a formal extradition request the terrorist would be tipped off by someone in the security establishment and would pick a new hiding place before he could be arrested.
I would note that many of the Pakistani detainees in U.S. custody did not get there by formal extradition procedures. There is actually a pretty good reason for that and it’s not that Pakistani courts are not functioning — they’re actually one of the healthiest institutions in that god-forsaken country.
January 28, 2010, 9:33 pmBob from Ohio says:
Sure, if they can get away with it. But I bet no one would try.
But it isn’t a lack of “legality” that would stop them.
January 28, 2010, 9:54 pmMartinned says:
OK, guilty. I liked the reference to Milligan a bit too much. Please substitute something along the lines of effective (civilian) government.
Just like bullies everywhere do with impunity what no one would dare do to them. (I’m thinking of the bullies in the Simpsons here, but you’re welcome to use a real life example instead.) Just because people break the law and get away with it, doesn’t mean we should stop making laws.
BTW, it may not be with drones, but why shouldn’t Mexico try to solve their drug cartel problem by having one of those guys shot in the US if they’re dumb enough to let their guard down north of the border? By your logic, that should be perfectly legal. (Well, not illegal.)
January 28, 2010, 10:11 pmRich Rostrom says:
ShelbyC says: “We fought an entire war on US soil against an enemy who consisted entirely of US citizens.”
Not quite true. There were foreigners in the ranks of the CS Army: Heros von Borcke and the Prince de Polignac, to name two famous examples. Also, the crews of the Confederate raiders Alabama and Shenandoah were mostly foreigners.
Anthony says: “Actually, I believe a letter of marque was issued to the Goodyear Tire Company during WWII, because a blimp with an armed civilian crew was used to hunt submarines.”
The Navy operated 134 armed blimps as convoy escorts during WW II. These blimps were built by Goodyear Aircraft Corporation, a subsidiary of Goodyear Tire and Rubber Company. All were manned exclusively by Navy personnel.
Also during the war, many hundreds of civilian freighters were armed with guns for defense against enemy attack. These guns were manned by Navy detachments. None of these ships, AFAIK, went looking for enemy ships to attack.
No letters of marque were issued. Indeed, no letter of marque is required to authorize force against a hostile warship. The letter authorized a civilian vessel to take prizes.
January 28, 2010, 10:25 pmJeffB says:
There would have been no need to resort to Constitutional arguments since it would have been in direct contravention to the order Lincoln actually issued; see Sec. 9, Art. 148 of “INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD”, prepared at Lincoln’s behest during the Civil War (http://www.suvcw.org/education/documents/liebercode.htm)
January 28, 2010, 11:31 pmRhymes With Right says:
Do you understand what a hypothetical example is?
January 29, 2010, 12:27 amJeffB says:
This is not a question of where, geographically, the writ of the United States extends. It’s a question of whether the United States may disregard the Constitution in its treatment of a citizen merely because that citizen is beyond U.S. borders. Reid answers that question clearly and in the negative. (“At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution.Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”)
Do you really mean to brush aside so casually the absence of a declaration of war with the dismissive term “magic words” and in the next breath accept so readily the authority of a President to vaporize a citizen’s Constitutional rights merely by pinning the label “enemy combatant” to his chest?
To tease out and untangle the issue of citizenship from questions of the nature of the conflict: I doubt anyone would seriously contend that killing a US citizen bearing arms against the US on a traditional battlefield would present difficult legal questions. But conventional war or not, assassination of a US citizen by the US government does and should.
January 29, 2010, 1:31 amJeffB says:
Yes I do. Do you understand the difference between a “hypothetical example” and a “rhetorical question”?
(Don’t answer that.)
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January 29, 2010, 1:47 amRicardo says:
Didn’t that case concern a U.S. citizen in the custody of the United States already? The relationship between a citizen (well, anyone, really) and the U.S. government changes dramatically once that person is already in custody.
In the U.S., the government has the big advantage of being able to collect evidence against you and get an indictment or arrest warrant and then permission to hold you for trial. Outside the U.S., the government has to simply hope the police and military authorities in the country will cooperate in turning you over to the U.S. If they don’t (as in the case of a non-functioning court system or corrupt and dysfunctional civil authority), the government may need to get a bit, well, non-traditional.
Rights typically track power and authority. As the U.S. government is at its most powerful and authoritative when operating within the territory of the U.S. or when holding a person in its custody, that’s when rights claims should be strongest. They should be correspondingly weaker in an area like the Northwest Frontier Province in Pakistan where neither the U.S. nor anyone else aside from tribal warlords holds much authority there.
January 29, 2010, 3:12 amMartinned says:
OTOH, in such a faraway place the need for killing a given person is much less likely to be significant as well. If you’re going to invoke self-defence, the person or persons you’re invoking it against must be a legitimate threat, and the measures you are proposing must be necessary and proportionate. If you’re going to go to all the trouble of sending a drone after some beard in the mountains of Pakistan, you should be able to articulate a significant connection between your target and a legitimate US national security interest. For example, revenge or punishment for 9/11 doesn’t count.
January 29, 2010, 11:27 amJeffB says:
January 29, 2010, 12:32 pmOren says:
Nonsense. The AUMF is a declaration of war within the meaning of Article I.
If you serious purport to apply the DP clause to military actions against enemy soldiers then I contend that we are so hopelessly in breach of this amendment that it’s futile to even bother trying to comply with at this point.
I mean, what process did Andrew Jackson have to give the British garrison at New Orleans when he attacked htem 1814? What process did the US afford to even Confederate soldiers, citizens of the US no less, blown to bits (quite randomly) by the cannon fire and mortars? Did US bombers in WWI and WWII arrange for death warrants for their targets (assuming they could even identify who was likely to be killed)?
Really? We don’t know the US military process for putting someone on the “kill list”. Perhaps it involves the collection of a large amount of evidence and multiple layers of review and analysis, in which case it seems further from arbitrariness than many military actions.
Injustice? When a terrorist gets a precision-guided missile that’s unjust? Let alone capricious or unreasonable (both of which are utterly inapt).
Again, you don’t know that there isn’t already an adequate Executive-branch framework for analyzing and classifying these targets.
In one sense, yes, an authorization for military force allows the President to (drumroll) use military force. If Congress passed an AUMF allowing Obama to bomb Iranian nuclear facilities, for instance, would he need to adjudicate the guilt of a janitor that might be cleaning the floors at the time of the bombing? Of course not.
If they could (i.e. if the US could not exclude them forcibly from our airspace) and they really wanted to, I doubt the legality of the action would be a major hindrance.
Do you have any evidence that the US actually summarily executes people without cause in such a fashion? Do you have any evidence that level of review for approval onto the “hit list” is the same as the “no fly list”?
February 1, 2010, 12:56 amAndrew says:
I think it needs to be recognized that, in most cases, American citizens should not be considered to have more Constitutional rights than non-citizens. Except in special cases where the Constitution specifically references citizens, like in the Privileges and Immunities clause, there’s little reason to consider citizens and non-citizens differently. The Constitution, at its root, is a restriction on governmental action, not a document that grants special rights to specific people.
My full thoughts here.
February 1, 2010, 7:37 pmJeffB says:
First, to re-state the facts correctly (it was my initial misstatement which no one has yet rectified) the US Congress’ last declaration of war was not against Germany in December of 1941, but against Bulgaria, Hungary and Romania on June 5, 1942.
More substantively, you may assert that an AUMF is the functional equivalent of a declaration of war. But that’s all it is, a bare assertion, not an argument.
Nothing in the Constitution can be reasonably construed to allow Congress (or for that matter Congress and the President, or even all three branches acting in concert) to reallocate powers among themselves in a manner more to their liking. Yet that is precisely the effect of the War Powers resolution pursuant to which so-called AUMFs are passed. The Constitution authorizes Congress to declare war. It does not authorize Congress to declare sort-of-war. It does not authorize Congress to declare that we are at war for these purposes but not for those purposes. It does not authorize Congress to declare that we are 35% at war. These are not matters of mere semantics, but real differences with real world consequences of the sort which weighed heavily on the Framers and affected their decisions in striking the balance they did.
As to the application of the Due Process Clause to “military actions” against “enemy soldiers” (to use your phrases,) you are both begging the question and setting up straw men. Straw men, because I did not make, and doubt any serious person would, the argument that the killing of a uniformed enemy soldier on a battlefield during a declared war raises any question of Due Process. (Though killing an individual soldier singled out by name and identified in advance, i.e., assassination, may implicate other, non-constitutional questions of law, such as violation of treaty obligations, executive orders, etc.)
You also beg the question who is an enemy, who makes that determination and how – - matters at the very heart of the controversy.
If the President has the inherent power to decide unilaterally, in secret, without check or review, that thus and so is an enemy of the state and therefore marked for assassination, then it remains to be reconciled how it may be that the US Government in Reid violated the defendant’s Constitutional rights by providing her with a trial comporting with Due Process in every way save one (a jury) but would not have offended the Constitution by simply designated the self-same Reid as an “enemy combatant” and executed her summarily, with no trial whatsoever.
Is this what you “seriously purport?”
February 1, 2010, 10:08 pmOren says:
This is the view of 2 DOJs, 4 Congresses and the weight of common sense. Let me turn it around, would (either) AUMF be functionally different if it included the words “And thus we declare a state of war” at the end?
When Congress points our military at another nation and says “fight them, overthrow their government, and occupy their territory” it is declaring war regardless of whether it uses magic words in the enabling act. The opposite result would be an elevation of form over substance.
Indeed, on this we agree quite precisely. This reasoning is exactly why an AUMF is functionally equivalent to a declaration of war — because it could not be a partial declaration of war nor could it be a declaration of peacetime. What else could it logically be then?
Well, we were discussing a case of military action (a predator drone strike) against an “enemy soldier” (an individual within the scope of the AUMF.
Presumably bombing Panamanians, Cambodians or Serbians during an undeclared (and, in Serbia, unAUMFed) hostility is not a violation of DP as well (again, otherwise we are in serious breach already).
Nor has the killing of an enemy soldier away from the battlefield historically posed any legal problem, even in undeclared/unauthorized conflicts. Clinton’s Serbian campaign effectively had no battlefield since there were no ground engagements at all, likewise the US bombing of Iraq during the inter-Gulf-War period. Surely an Iraqi tank commander killed during the “peacetime” between the wars was not entitled to a hearing.
So, stripping away those two unneeded qualifiers, we have only that historically, Due Process has not been afforded to enemy soldiers killed by military strikes.
I don’t need to beg the question, Congress has answered it already. The definition of who is an enemy and who makes the determination are spelled out in as plain English as I’ve ever seen Congress produce:
Authorization for Use of Military Force
September 18, 2001
Public Law 107-40 [S. J. RES. 23]
Who said there is not check or review? I certainly didn’t. In fact, it’s quite likely that the evidence for whether a person qualifies as an enemy under the AUMF undergoes significant evidence gathering followed by multiple levels of review and analysis before being sent to the CinC for approval.
I’ve never said that the President has the power to pick names out of a hat for assassination, but then again no one seriously suggests that this is the policy we are debating. If we are, in fact, debating the names-out-of-a-hat-policy then I will tell you I’m firmly against it.
Well, there’s the easiest explanation: there is no statutory authority to execute any prisoner held by the US, enemy or otherwise. It’s clear to just about everyone that the status of an enemy that’s capable of continuing to make war against the US is not the same as one in shackles. The execution of a prisoner already in custody just isn’t “military force”.
Military force usually also implies that a situation of military exigency — that is, one in which lesser force is not possible and the risks of leaving the target free to continue his actions are significant. Besides being already in custody, Reid was in a US military installation located in a US-friendly country. She surrendered peaceably to authority when detained (of course, military law requires our troops to cease fire on anyone who genuinely surrenders).
February 2, 2010, 1:45 amOren says:
By the way, here’s the juicy part from the AUMF of 1801 relating to the Barbary War.
If it’s good enough for Thomas Jefferson, it ought to suffice for lesser Presidents.
February 2, 2010, 1:47 amRhymes With Right says:
Except, of course, what is being discussed here is taking the ships to a port whee a prize court can condemn the captured ship and its contents, which would then be sold and the proper shares be distributed to the US government, the captain, officers, and crew of the navy vessels involved in the capture. It does not refer to a trial in civilian court for any captured crew.
February 2, 2010, 6:12 amOren says:
RwR, the Barbary point was only to demonstrate that Congress can declare war without saying magic words. Jeff claims that the AUMF is not sufficient for that, I quoted the 1801 AUMF (which does not “declare war” in so many words, and yet explicitly allows any hostility that a state of war would justify) as evidence to the contrary.
February 2, 2010, 10:01 amRhymes With Right says:
Sorry I missed the point — I understood it as being a defense of the notion that foreigners had a right to their day in court during hostilities.
February 2, 2010, 10:44 amJeffB says:
1. It isn’t a question of counting noses, no matter how many DsOJ or Congresses you line up. Neither any one of them nor all of them together have the authority to alter the Constitution.
2. I agree with what you posit the consequences of such a declaration to be. I do not agree that the post 9/11 AUMFs are equivalent to the one you hypothesize. What government? What territory?
Unconstitutional.
That’s your frame, not mine. I’m discussing the question of Executive authority to determine that American citizens abroad are enemy combatants and to therefore set them down for assassination. That is the substance of the program which WaPo reported that the Bush Administration began and the Obama Administration has continued.
Presumably. But we’re discussing the Constitutionality of particular state action against American citizens abroad.
The killing of those uncontroversially accepted as enemy soldiers is not what the program is reported to be about. In any case, I don’t think the same statement can truthfully be made regarding assassinations, though I gather Kenneth might be undisturbed if it were.
We’re discussing matters of Constitutional authority. If the Constitution reserves to Congress as part of its power to declare war, the need to identify who the enemy is (as would seem a necessary corollary) then it’s unavailing to invoke this or that statutory act of Congress purporting to strike a different arrangement.
So they could have released Reid from custody and then assassinated her?
The difference doesn’t ultimately turn, I think, on an “in custody”/”not in custody,” distinction. Putting aside all the legal niceties and all of my concerns about the constitutionality of the War Powers Resolution (I’m realist enough to recognize that however doctrinally unsound, the Court will almost certainly never take up the question) and AUMFs, I think our real differences boil down to this: a willingness to trust Executive authority to determine who is an enemy combatant vs. a profound unease with doing that.
The history of the twentieth century is woefully replete with purges, gulags and camps standing as stark reminders of why it’s unwise to grant that trust. By my reading of the Constitution and the history of its framing, those examples are precisely the sorts of abuses the Framers intended to avoid when they designed a Constitution that constrained the Executive as it does and one in which it would be difficult to go to war and easy to make peace.
February 2, 2010, 11:32 amOren says:
But they do have the collective authority to interpret the Constitution, even in ways that you (or even myself, as amazingly powerful and wise that I am) do not approve.
Your assertion is in conflict with the presumed constitutionality of the 1801 AUMF in the Barbary War.
Well, it’s for Congress to identify the enemy and the Executive to carry out the military force against them.
Congress does identify the enemy is — those the President determines planned or aided the 9/11 attacks. Does Congress need to list the names of every such person (the identities of which were not known at the time anyway) to satisfy you that they are “identified”?
You mean if Reid were actually an enemy under some relevant AUMF and managed to get loose to some place that the US could not detain her? Then yes.
I happen to believe we elect a President to do precisely that — to make Executive decisions regarding the military actions within the confines of Congressional authority to do so.
Indeed. I didn’t think we were talking about those things, I thought we were talking about military action abroad. If a President dared to do any of these things inside the USA, I would be quite literally up in arms to oppose him (well, it might be wise to try the ballot box before the ammo box, but you can never be too sure).
Of course, the President is still constrained in his actions by Congress — if the AUMF was revoked then that would be the end of it right there and then.
The fact that the AUMF had not been revoked (across a number of elections) is a continuing sign that the American People want it to continue.
February 2, 2010, 6:24 pm