The Constitutionality of President Obama’s Targeted Killing of U.S. Citizens

by Julian Ku

The NYT reports that the Obama Administration has authorized the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, The article notes the international law justification for his killing: he is an avowed member of Al Qaeda actively engaged in hostilities against the U.S.  Under either the law of armed conflict or the general law of self-defense, the Administration probably has the legal authority to kill him.  (Unless international human rights law applies, but the administration plainly believes this law does not apply). 

But, as I noted here a few months ago, this international law analysis does not answer questions about al-Awlaki’s constitutional rights.  Under U.S. Supreme Court precedents, U.S. citizens often can invoke constitutional rights against the U.S. government, even when they are abroad. (See Reid v. Covert). Maybe this is a situation where granting constitutional protections would be, as Justice Harlan  suggested, “impracticable and anomalous.”  It certainly seems that way, and I assume the Obama Administration has concluded that the Constitution does not apply.  Alternatively, the Constitution might apply, and the theory is simply that al-Awlaki’s rights substantive and procedural Due Process rights are not being violated.  This seems a harder argument to make, and it would be fascinating to see someone (like Harold Koh again?) make it.

http://opiniojuris.org/2010/04/07/the-constitutionality-of-president-obamas-targeted-killing-of-us-citizens/

12 Responses

  1. Only July 3, 1863 every one of the 12,500 members of Picket’s division were US citizens. Although throughout the war most soldiers were anonymous to the other side, the identity of most of the commanding officers was known and in many battles some known commander was killed. This all happened on US soil, so it has nothing to do with being overseas.

    It was not just the enemy that was killed. When a US general orders his men to storm an enemy position in any war the US has ever fought, he knows that some of them will be killed. They will not receive any judicial process at all, let alone “due process” under the Fifth Amendment. By what theory do you imagine that traitors like al-Awlaki are entitled to more rights than we gave to the heroes who stormed Omaha Beach on D-Day?

  2. Response…    Under either the laws of war, where applicable, or the law of self-defense, a U.S. national who is taking an active and direct part in hostilities and/or armed attacks against the United States, its military abroad, and its nationals abroad is targetable while doing so in a foreign counry and, under certain circumstances, can be captured.  Since international law is part of the laws of the United States that the President is bound faithfully to execute (U.S. Const., art. II, sec. 3 (“He shall … take Care that the Laws be faithfully executed”), the President actually has a constitutionally-based competence to do so.  The 5th Amend. would not require a trial before a U.S. citizen directly participating in an armed attack can be targeted.  Human rights law generally applies in time of war on the battlefield or during self-defense targetings, but applicable human rights instruments such as the ICCPR apply to a person within the actual power or effective control of the United States — which is not the case in this instance.  See generally http://ssrn.com/abstract=1520717
    Concerning international law and enhancement of presidential power, see, e.g., Paust, Van Dyke, Malone, International Law and Litigation in the U.S. 271-73 (3 ed. 2009) (West – American Casebook Series).
    Jordan J. Paust

  3. Response…

    I think the issue is not so much the Constitution’s applicability abroad as the applicability of specific constitutional rights to this individual given their acts and status in a conflict. As Mr. Gilbert points out, the Civil War illustrates this point well. This is one situation where location does not really change the analysis; were he in the US he would (based on the government’s theory) be equally vulnerable to attack.

  4. Julian,
    Numerous Supreme Court cases explicitly or implicitly find that the government may exercise war powers against appropriate U.S. citizens (those who are properly deemed public enemies) and their property without regard to constitutional protections.  Although my current project will more fully establish this and its theoretical basis, I discuss relevant precedent in my article on SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1539257), including but not limited to:
    pp. 36-37, discussing Prize Cases, 67 U.S. 635, 672-3 (1863).
    pp. 44-45, discussing Juragua Iron Co. v. United States, 212 U.S. 297 (1908).
    pp. 46-47, discussing Ex parte Quirin, 317 U.S. 1, 38-46 (1942).
    p. 49, discussing Hamdi v. Rumsfeld, 542 U.S. 507 (2004).  For this case I clarify that the Court found “the Executive’s authority to use force impliedly included this measure of simple military necessity [i.e. preventive detention]. Because of the fundamental change in the nature of rights afforded public enemies, however, the Constitution required a reliable determination of Hamdi’s enemy status….”
    It is no wonder then that the first of the Boumediene factors regarding the availability of habeas corpus was “the citizenship and status of the detainee and the adequacy of the process through which that status determination was made” Boumediene, 128 S. Ct. at 2259.

  5. A few questions:

    1) Does a different precedent apply because the American in question is actively and admittedly waging war against the United States?

    2) Police snipers have been known to take out criminals such as hostage-takers, American citizens, if the lives of innocent people are at stake. Can the same be applied here?

  6. Dangerous times call for commensurate measures.  Surely there must be a way for a court or tribunal to hold a hearing and determine whether Awlaki deserves to hide behind U. S. Constitutional rights.  If he doesn’t, his citizenship should be declared forfeited and a bounty placed on his head. 

    I really don’t care what “international” law says.  I consider it a legal fiction when it comes to war and terrorism.  How much did the Geneva Convention protect John McCain and his fellow POWs?  The only thing that will make some nations abide by civilized rules is the threat of imminent defeat by U. S. forces.  That was shown in the case of Japan’s treatment of American POWs, and it’s so obvious as to require no other evidence than one’s common sense..

  7. I don’t understand why this should present a problem.  Did those Confederate soldiers at Gettysburg disavow their U.S. citizenship in service of a rebellion?  Absolutely.  When all was said and done, the former Confederates had to be restored citizenship by amnesty.  Did Al-Awlaki disavow his citizenship in service of a foreign terrorist organization?  I would guess so.  Would we have cared in the past if an American had, say, joined the Barbary Pirates or “gone native” in the Indian Wars.  I doubt anyone cared to even ask if such people had Constitutional rights.

  8. Funny, foreign jihadists at Gitmo are accorded the US Constitutional rights as if they were all US citizens, while US citizens traveling or residing abroad will have their US Constitutional rights denied on the say-so of his Excellency, the President of the US.

    Question: Would citizens who travel abroad be considered terrorists if they sympathized with the jihadists, or criticized our Dear Leader?

    His Excellency has decreed that Islamist jihadists would no longer be called terrorists. Would his Excellency call the “violent teabaggers” terrorists, rendering them targetable if they travelled overseas? 

    Seems it’s saver for Islamist jihadists to plan and kill Americans inside the country.

  9. Response…As I recall, a sniper at Ruby Ridge killed an unarmed woman holding a child. The US government can kill you any time it wishes. Nuff said.

  10. We are not talking about killing a man on a battlefield as he is in arms against the United States.  A US solder could kill that man, but as soon as he dropped his weapon and surrendered the US soldier would be obliged to safeguard his life.  Confederate soldiers in the Civil War were taken prisoner, not summarily executed.  But that’s not this case. 
    Here we are talking about killing a United States citizen residing in a third country not at war with the United States.  He might be asleep in his bed, or eating his breakfast.

    The Constitution is very clear about how a citizen who makes war against the United States is to be dealt with.  Article III, Sec. 3, says: 

    “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
    The Congress shall have power to declare the punishment of treason …”

    Overt act.  Two witnesses.  Convicted.  Open court.

    The Constitution does not say, “treason shall consist of levying war against the United States, and if the President decides you’ve done it he can bust a cap in your sorry ass.”

    But hey, what does the Constitution matter?  You send a drone against some guy with a funny name in some godforsaken mountain village somewhere and he’s gone.  Poof. 

Trackbacks and Pingbacks

  1. [...] refer readers to a couple of discussions at Opinio Juris international law blog.  One is by Julian Ku, raising the basic question — but see the comments as well, including the brief comment by Kal Raustiala, author of a new and [...]

  2. [...] ON OBAMA’S TARGETED KILLING ORDERS AIMED AT AMERICAN CITIZENS, from Jason Kuznicki and Julian Ku. I have no problems with the targeted killing of terrorists, but — as I’ve said more [...]