A Question for Koh Defenders

by Kevin Jon Heller

A simple question for those who believe “self-defense” and/or the AUMF authorizes the CIA to kill Americans abroad outside of armed conflict.  If Obama authorizes it, can the CIA put a bullet in the back of the skull of an American citizen believed to be affiliated with al-Qaeda while he is watching a movie in Topeka, Kansas?

If not, why not?


6 Responses

  1. The CIA may not under law operate inside the US. The FBI has jurisdiction and has been known to kill people in movie theaters, but they wait until they are leaving and prefer it if the target is easy to locate in the crowd because they are accompanied by a lady in a red dress. Killing someone who is not armed and dangerous in the US is prohibited by the Fifth Amendment.

  2. If the AUMF trumps generally-applicable federal laws, it must also trump laws limiting CIA operations in the US, right?

  3. The AUMF authorizes military force in an armed conflict. The hypothetical asserts the killing is “outside of armed conflict”, which I take to mean that the target is not a uniformed member of an enemy army, a member of an organized armed force of a enemy engaged in continuous combat function, nor a civilian involved in direct participation in combat. If he were part of a Mumbai style attack on the US who decided to take a break and view a movie, then he could be killed on sight, but generally this would be done by the military and not the CIA. In the more normal case, where you forgot to mention the suicide bomb vest he wore into the theater and intends to detonate during the credits, it is the job of the FBI to put a bullet in his head.

  4. Excelent question! Now Im not from the US (and perhaps someone can clarify me the details of the debate) nor am I an expert in targetted killings/humanitarian law but my gut instinct has been begging me for quite a while now to ask this question: why is it the problem that the target is “American”? To me, what is problematic is that the US asserts its right to kill any civilian (independent of nationality) wihout trial when he is not in an armed conflict because the US government believes (without trial) he is affiliated with al-Qaeda. I mean, if you’re not at war, you should have to capture the guy and trial him, and then perhaps sentence him to death, not kill him from the start, right??

  5. Kevin:

    The non lawyer response to that is: because treating a movie theater in Topeka like the AfPak border would be insane.

    To translate that into lawyer: given the variety of other legal doctrines that occupy the space within U.S. territory — the full panoply of  constitutional rights, federal criminal law, state criminal law — we will impose a super-clear statement rule on any statute purporting to authorize the use of military force within the United States. Otherwise, we will assume all the other laws apply. (And that’s before we even reach the due process question.) Outside the US, our law, both statutory and constitutional, has severely limited extraterriotrial application, so the AUMF does more work.


    From the perspective of US law, the reason the American/non-American distinction matters is that our constitution confers only limited rights on non-citizens, particularly outside the United States. Unlike in some other jurisdictions, IHL and other branches of international law do not apply of their own force to bind the U.S. government from the perspective of domestic law. As a matter of policy, maybe the distinction shouldn’t matter — and I’m not sure I’d agree — but that is why, as a matter of legal doctrine, it does matter.

  6. It is now clear; Kevin is a conspiracy case nutjob!!!

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