U.S. Claims Legal Authority to Assassinate Americans

by Julian Ku

I’ve been on blog-silence the last few months, but one of my students today made me feel a little guilty about my lack of blogging, so I’m back (at least for now).  So while not wanting to interrupt this great online symposium, I’ll just point our readers to this remarkable little exchange between U.S. Director of National Intelligence Dennis Blair and members of Congress.

“We take direct actions against terrorists in the intelligence community; if … we think that direct action will involve killing an American, we get specific permission to do that,” Director of National Intelligence Dennis Blair told the House Intelligence Committee.

Blair goes on to helpfully explain that such assassinations will not be for free speech, but for “engaging in action that threatens Americans.”

In fact, as the report goes on to point out, the U.S. Predator strike campaign has already killed a number of Americans in Pakistan associated with Al Qaeda.  So I guess this isn’t such a big deal. But as a legal matter, it is odd that the U.S. must grant substantial constitutional rights to citizens abroad, and it must even grant habeas rights to challenge their status to U.S. citizens held as enemy combatants, but it can target and deliberately kill Americans abroad without notice or a hearing.  Would love to see the OLC opinion (no doubt by Marty Lederman) on that one…

http://opiniojuris.org/2010/02/04/us-claims-legal-authority-to-assassinate-americans/

4 Responses

  1. I don’t know the right answer to this troubling question:  When can the federal government lawfully kill without trial an American citizen at home or abroad who has taken up arms against his or her own country?

    Rarely, if ever, I would hope the law answers; that said:

    I am reminded of the Whiskey Rebellion and the American Civil War . . .and the matter of those in rebellion attempting to use the constitution as a shield to protect themselves from action by the federal government to stop them.

    Was it Justice Arthur Goldberg who wrote:  ” . . . for while the Constitution protects against invasions of individual rights, it is not a suicide pact.”

    It seems to me, moreover, that your rhetorical question about the protection of constitutional rights of citizens abroad and of U.S. citizens captured and detained as enemy combatants sets up a false equivalence with those not out of combat and actively engaged in hostilities against their country. 

  2. I spent some time arguing over this one at Volokh last week. My best guess is that the nationality of the target is relatively unimportant in the analysis. Within a laws of war framework, that is clear: the US army may shoot at a US citizen who is part of the enemy armed forces. If we’re looking at this from a self-defence-but-not-a-war point of view, everything is up for grabs, but I’d say the most important questions would be about necessity and proportionality, not citizenship. (Assuming, throughout, that the target is not located within the United States.)

  3. I suspect you are right, Martin, that the nationality of the target is not the decisive factor in this analysis.

    What I wonder about:

    What, in a war against non-state terrorist organizations such as Al Qaeda, or the Taliban, is “the enemy armed forces,” and does it matter?

    In a war now apparently fought significantly with use of non-uniformed covert operatives by the U.S., often not part of the U.S. armed forces, but rather members of paramilitary organizations associated with certain intelligence agencies, who are charged by their government with the mission of targeted killing of designated enemy individuals, does the concept of “armed forces” even have any utility any more?

    In a war by a state against a non-state entity that operates as a de-centralized, self organizing, adaptive learning organization with war making and war fighting decision rights possessed not only by the “political leadership” of the entity but by every individual member, does the distinction between jus in bello and jus ad bellum have any meaningful utility either as law or policy or morality – or strategy? 

    Would not “soldiers” of such an entity be responsible both for the decision to go to war as well as for their individual conduct within it? 

    If they are so responsible, and the decision to go to war consitutes an unlawful act of aggression against a state, how can they have any combatant’s privilege or combatant’s immunity?

    Can “citizenship” and membership in an “armed force” have any legal relevance when the conflict is not with a state but rather with a non-state entity which does not define it’s members by nationality or citizenship?

    And if this is so, can the traditional law of war have any helpful application at all to an armed conflict with such an organization? 

  4. Are we perhaps reading too much into this remark?  It sounds to me like Mr. Blair is talking about American citizens killed as collateral damage to a strike, not as the primary target.

    Is there ever any criminal legal recourse for civilians killed in the course of a legitimate military attack (That doesn’t violate, say, Proportionality) ?

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