Are President Obama’s Assassinations of U.S. Citizens Constitutional?

by Julian Ku

The NY Times Opinionator has a nice roundup of lefty-blog reaction to the Obama Administration’s claim of the legal authority to kill and assassinate U.S. citizens abroad (and its admission to having already done so). Most lefty-blogs seem unconcerned about this policy, with the notable exception of Glenn Greenawald. From a legal perspective, the relative lack of outrage among the lefty-blogs/Obama supporters really does open the door to charges of hypocrisy. (One searches in vain on Balkinization for the outrage, for instance).  Or have they joined the “Dark Side” where such bloggers famously accused Dick Cheney and John Yoo of residing?  Here’s why these assassinations/killings pose such a real legal problem, especially under their previously stated views of how U.S. law should work.

It is an article of faith of many critics of the Bush policies that the detention of U.S. citizens as enemy combatants is almost always illegal, that the U.S. is bound by constitutional requirements even when acting abroad in a war zone, and especially when it is acting against U.S. citizens.   But if one believes all of these things, then one cannot possibly believe that deliberately assassinating U.S. citizens is constitutional.  As I’ve said before, if the U.S. cannot designate a U.S. citizen as an enemy combatant without a hearing (and this is now a requirement of U.S. law), then I can’t quite see how the U.S. can at the same time deliberately assassinate that same U.S. citizen without a hearing.  Am I missing something?

As some of the commenters have pointed out, the nationality of the victim is not that important from the perspective of international law.  Under international law, the main question is whether there is legal authority to kill or assassinate anyone, much less one’s own nationals.  But even under international law, as readers of Ken Anderson’s posts here and at Volokh know, it is still not all that clear.   Indeed, there seems a more than plausible argument that certain kinds of assassinations, as currently executed by the Predator drones, could indeed constitute a violation of the law of war.

In any event, if the U.S. is going to pursue this policy, it should openly defend its legality.  As Stuart Taylor suggests, now might be a good time for Harold Koh to earn his keep over at the State Department and lead a robust legal defense of U.S. practice before the world community and in NGO circles.  And what better place to launch this defense do so than here at the Opinio Juris?

http://opiniojuris.org/2010/02/06/are-obamas-assassinations-of-us-citizens-constitutional/

10 Responses

  1. There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U.S., at 20. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id., at 37—38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. Hamdi v Rumsfield.

    If “it is an article of faith of many critics of the Bush policies that the detention of U.S. citizens as enemy combatants is almost always illegal” then then they hold that position in contradiction to the current Supreme Court decisions on the question.

    “if the U.S. cannot designate a U.S. citizen as an enemy combatant without a hearing (and this is now a requirement of U.S. law)”

    In Hamdi, the Supreme Court allows the US to initially designate a U.S. citizen as an enemy combatant, but then allows him a constitutional due process right to challenge that classification after the fact before a hearing:

    We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. Hamdi v Rumsfield

    Unlike a criminal charge, where the trial is a requirement even if the defendant wishes to plead guilty, a US citizen is only entitled to a hearing if he wishes to challenge the claim that he is an enemy combatant. If he does not make such a challenge, then he receives no hearing, as Jose Padilla never asked for nor received such a hearing.

    At Vicksburg from May 25 to July 3 1863 the Union Army fired tens of thousands of shells into a city filled with civilians going about their day to day business. Relatively few civilians were actually killed, and no specific individual was targeted. There was, however, no prior judicial hearing, nor has there ever been a suggestion that the siege was unconstitutional.

    Technology now allows us to attack a single enemy military commander instead of bombarding an entire town. When we do so, however, some call it an assignation. Apparently critics would be happier with a good old fashioned strategic bombing like Tokyo  with 100,000 dead rather than a targeted strike that kills a single high ranking enemy officer.

    Everyone agrees that if an enemy military commander who happens to also have been born in the US is captured, then he could not be executed without a proper trial, whether civilian or Court Martial. However, you cannot have a trial without a defendant, and if he does not surrender himself for trial does that mean that he is immune to military attack?

    Under the laws of war, a civilian cannot be targeted with lethal military force unless he is engaged in combat at the time. An enemy soldier can be targeted at any time and in any place. There is no requirement that there be a battlefield already in place before a soldier is attacked (or else who could fire the first shot since there is no battle without the shot, but there could legally be no shot without the battle first).

    Thus the legality of a Predator strike depends on the status of the target and not his location. If he is a regular soldier in a regular army, or if he is a member of an armed unit of a non-state party to an armed conflict who is engaged in “continuous combat function” then the attack is legal. However, if he is a civilian who occasionally aids an enemy force, then it is unlawful to target him except during battle.

    Citizenship is irrelevant to the legal targeting of an enemy combatant, but it may have an effect on the severity of legal consequences of an illegal targeting of a civilian not engaged in combat at the time.

  2. I do not know if I am left or right at this stage of my life so please do not put me in a box.  I have agreed with Reagan Republicans on a number of things as well as with Cindy Sheehan on other things.  I think my thing is the question of legitimate and illegitimate use of power.

    Reid v Covert states clearly (I am paraphrasing here) that the Government can not do abroad to a US citizen something it cannot do in the United States.  I think that is the dilemma here. 

    I take Howard’s various points, but the question seems to me not to be one of Hamdi or someone like that, but of an American being put on a “hitlist” based on what evidence?  On evidence like the stuff that got us into Iraq?

    If that American is taking up arms against America with our enemies in war of course we can kill him/her if he/she does not surrender and all the rest of it or capture him/her. After capture yes the hearing, the holding (for how much time? why not to the end of hostilities as an enemy combatant or civilian security detainee of the kind in GV IV but (right of citizenship) with the possibility of meaningful habeas review), maybe the trying for murder or attempted murder etc like I believe Lindh was in an Article III court.

    If the American is overseas saying things that some President does not like about America sitting at a cafe in Paris – does that get you on a hitlist?

    You know, it was a common theory in the early 60′s that Richard Wright – Native Son and the rest of it – was killed by military intelligence in Paris.  I saw that issue come back again even as recently as 1992 when the guy who was thought to be the military intelligence agent showed up at a conference on Black American Writers in Europe where we were putting up a plaque for Wright at 14 Rue Monsieur le Prince in Paris.

    Haupf’s US citizenship was very carefully understated/ignored in Quirin – see Louis Fisher’s, Presidential Power and Military Tribunals – and – in that time – he probably was not thought of as a “real American” notwithstanding having (I believe) his dual citizenship.  Haupf, it seems to me, should have been tried in an ordinary US court.  And the awfulness of the Quirin military tribunal and the Supreme Court’s pre-execution verbal “OK” and post-execution written “OK” is a sad moment in Supreme Court and the Executive history.  Why could the execution not await the written decision of the Supreme Court?  Judges – when before the pen – have changed their minds on points.  Happens to me too.

    Best,
    Ben

  3. On the one hand you insist that there must be some process to determine that an individual is an enemy combatant, but then when some process is followed and the designation is made you pejoratively refer to the result a “hitlist”.

    As I said, the only legal basis for military targeting is either a regular soldier in an enemy army or a member of an irregular armed force engaged in continuous combat function. Not being a terrorist, not expressing an opinion, not sitting in a Paris cafe, or any other kind of conspiracy crap. Two specific well defined criteria from military law.

    If you want a judicial process to determine who is and is not an enemy soldier, no such process exists or could be created within our system. Targeting is a military matter and the courts do not issue advisory opinions or decide such questions of fact. Therefore, you either have to have a blanket prohibition on combat that has any chance of killing an enemy combatant who happens to also be a US citizen, or else you have to accept that there will be some military decision process.

    The reference to Quirin and Haupt in the Hamdi decision was only used to support detention, not execution. However, Haupt could not have been tried in a civilian court because the charge for which he was convicted, “crossing lines without uniform”, is part of international military law and can only be charged in a military court. He could, however, have been tried before a Court Martial instead of a Military Commission (as any citizen today charged with a military offense must be under the current MCA). After extensive consideration, the Justice Department in 1942 decided that the only civilian criminal charge available against Haupt was that he failed to appear at the nearest Customs office (after paddling ashore in a rubber raft carrying explosives from a German U-Boat) and file a proper Customs declaration. That had a maximum sentence of 18 months in 1942.

    Remember that the 9/11 hijackers committed no criminal act until they got up in the plane and hijacked it. It was not even illegal at the time to carry box cutters on a plane. Some may not have had valid visas, but if they had been arrested one minute before they got on the plane the most you could have done was probably deport them. Even if they confessed, it would do you no good. One minute before they got on the plane, they had at most an intent to commit a crime, and intent all by itself does not make a criminal charge. There has to be a criminal act, and there was no criminal act until they started the hijacking.

    If Admiral Yamamoto, the architect of Perl Harbor, had somehow been arrested in New York in 1942, he could not have been charged with any crime in any civilian court. The attack was a military matter, protected by combatant immunity. He was, however, targeted individually under orders of FDR (“assassinated” I believe is the current term some want to use for such a military operation) on April 18, 1943. He was not a US citizen, but nothing would have changed had he happened to have been born while his mother was vising the US.

  4. Point well taken on court martial as opposed to civilian court for Haupt.  Sorry I did not mention that.

    Military targeting in laws of war/assassination of americans abroad – vast subject.  Just because the words “military” are in front of targeting or “targeting” is used does not reassure me about the basis of these selections of Americans abroad (or for that matter foreigners).  Trust us gets me nervous when my state is targeting citizens like me – visceral about this.  Sorry – too much bad history in the world about that and in the US (lynching anyone?).

    If the cafe was in Sana’a – as opposed to be in Paris -does that get you to be a target? Trust us on this in an environment where the “1 per cent rule” applied can drag people who have no reason to be targeted.

    On 9/11, could have charged them with conspiracy to murder and other things – one minute before they got on the plane.  Agreement and overt acts (even the so-called innocent ones of buying a ticket, getting gas, taking flight training, etc.) would have mens rea and actus reus for that crime. Guy at the gate in Boston regrets not following his instincts.  He did the best he could.  If he had taken them aside, then there was a possibility of prosecution depending on the evidence.  If not, they would go on a watch list and be deported. 

    But this is mixing Americans with foreigners (with little tie to America which might get them treated differently in our system).

    Best,
    Ben

  5. First, I think the use of the term “assassination” in this context is political hyperbole rather than legal commentary.  No serious international legal scholar (or student of history surrounding acts of assassination and use of the term) should call this type of attack an assassination.

    There is Supreme Court case law supporting the military destruction of American property supporting a public enemy in foreign land without constitutional problems (in the case, denying just compensation).  The case was later cited in Quirin to support the finding that a U.S. citizen could not claim exemption from a military commission.  Further, the Prize Cases very clearly support the notion that once citizen takes on the legal status of an enemy, the laws of war, not the Constitution, control their rights.   There are countless other examples in prize case decisional law.

    Provided that the targeted individuals are adequately determined to be public enemies, the relevant case law supports their military targeting.  The true problem is in establishing the (legally satisfactory) nature and quality of available evidence to make such a determination.

  6. I should add two things.  (1)  In this context “public enemy” means those who have “combatant” (or “belligerent” or “fighter”) status, as Howard noted.  (2)  As noted above, Hamdi did require due process to support continued detention as an enemy combatant/belligerent/fighter.  However, the process due is, as the Supreme Court has plainly said and recent habeas litigation demonstrates, less stringent.  It is also potentially non-existent under the factors adopted in Boumediene.  Perhaps, Ben, your concerns would be assuaged by applying the Boumediene factors to such attacks.  If habeas would not be available to someone under detention in similar circumstances, then no due process is required for targeting.  Hmm…perhaps my next article…Boumediene as a targeting standard.

  7. Hamdi says that a US citizen who contests his classification as an enemy combatant has a constitutional due process right to a hearing before an impartial tribunal. In practice this was extended to non-citizens through the CSRT. However, the DC Circuit ruled that the DTA-CSRT process was predicated on restricted judicial access that was overturned by Boumediene and they suspended further CSRT related proceedings. Strictly speaking, Habeas itself is not a “due process” mechanism.

    Hamdi was entitled to a hearing, but he was repatriated to Saudi Arabia. Padilla did not ask for one but limited his strategy to summary judgment within the context of statutory Habeas based on claims about the law and not a challenge as to facts. Al-Marri got a Hamdi-style hearing, but then failed to participate and received a default judgment that the government had proved its case. The Fourth Circuit en banc ruled that the hearing used inappropriate rules of evidence and remanded for a new hearing, but then al-Marri reached a plea deal. As a result, there is no example of a successfully completed Hamdi mandated “due process” tribunal, nor is any likely to occur.

    In a normal war, requesting a Hamdi tribunal is not a trivial threshold. To be afforded protection under the Third Geneva Convention, a soldier must admit his combatant status and provide his name, rank, and serial number. In a normal war, anyone demanding a Hamdi hearing is, by that act, forfeiting Geneva protection. At that point, he must either succeed in proving his civilian status or he will lose his status as a POW. Of course, if you begin a war (as we did in this one) by claiming that all soldiers in the enemy army are not entitled to Geneva protection, then they have nothing to lose.

    It is true that anyone who is subject to military targeting during combat is also subject to military detention as an enemy combatant if captured. So in some sense the military making a target decision are answering the same question as a judge in a Boumediene case. That said, the factors and decision making process of the police to use deadly force in a hostage situation are different from the judicial standards applied to convict the hostage taker. For example, the use of lethal force would be reasonable when someone appeared to be holding a gun, even if it subsequently turned out to be a toy. However, someone holding a toy gun could not be convicted of a firearms charge simply because the toy looked like a firearm.

    Targeting is not and cannot be made to be an Article III function. It is, therefore, not useful to try and import Article III procedures into an inappropriate context. This is good, because it would be much easier to bus judges to every police standoff, which we don’t even bother to do. Involving them in every military conflict would be much harder (does the flack jacket go over the robe or under it).

  8. “Provided that the targeted individuals are adequately determined to be public enemies, the relevant case law supports their military targeting.  The true problem is in establishing the (legally satisfactory) nature and quality of available evidence to make such a determination.”

    There we go.  That is the question.  I only ask what is enough evidence that puts someone on the hitlist?

    The answer I have seen have assumed the factual predicate that this person is an enemy combatant etc.  I find it somewhat amazing, this willingness to believe what the government says. 

    As to using the term “assassination,” again that assumes this is “just old military targeting”.  Orwell spoke to this many years ago in talking about the way a government uses words.

    Best,
    Ben

  9. Ummm…

    Matthew Yglesias and Ezra Klein do not constitute the “lefty” blogosphere.

    HuffPo & TPM had stuff about this issue that does not reflect “unconcern.” Glennzilla has been on top of it, as usual. Firedoglake has been decrying it for a while now. For example:

    It’s handy, isn’t it, the way the President gets to retain plausible deniability for the killing of a US citizen? And the way Obama has conveniently wrapped himself in the same plausible deniability that Bush (or, more likely, Cheney) created? That way you can kill US citizens without ever worrying about the President going to jail for it. And if you’re really good at hiding the identities of those who do sign off on the killings, then no one can sue!

    And that is only one of FDL’s regular posters (Emptywheel, who does fantastic national security stuff). EW has posted more about it, and other FDLers have as well.

    From a legal perspective, the relative lack of outrage among the lefty-blogs/Obama supporters really does open the door to charges of hypocrisy. (One searches in vain on Balkinization for the outrage, for instance).  Or have they joined the “Dark Side” where such bloggers famously accused Dick Cheney and John Yoo of residing?

    Balkinization, I would submit, does not reflect lefty sentiment in America tout court, either. It reflects (legal)  elitist lefty sentiment in America.

    Furthermore, if you know anything about the left in America (and from this post, I gather you do not), you know that there is a split among them, with the more progressive folks fairly vocal about what they (we) view as Obama’s shortcomings. The centrist-leaning liberals tend more to defend Obama, or to apologize for him. See balloon-juice.com for those. “Hippie-punching” is a favorite game of theirs.

    The point: your characterization that the left is unconcerned about, inter alia, this targeting-American-citizens-overseas story is just wrong.

  10. Response…
    Don’t forget self-defense targetings under Article 51 of the U.N. Charter, even outside the context or theatre of war.

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