The NYT Belatedly Notices Targeted Killing Debate

by Julian Ku

The NYT’s Scott Shane notes that “The Obama administration’s decision to authorize the killing by the Central Intelligence Agency of a terrorism suspect who is an American citizen has set off a debate over the legal and political limits of drone missile strikes….”  Uh, duh.. There was even a whole congressional subcommittee hearing about it, and lots of blogging! (see related posts below)  Still, the article does provide a more detail on the Obama Administration’s attitude toward U.S. citizens it has targeted for killings:

Administration officials take the view that no legal or constitutional rights can protect Mr. Awlaki, a charismatic preacher who has said it is a religious duty to attack the United States and who the C.I.A. believes is actively plotting violence. The attempted bombing of Times Square on May 1 is the latest of more than a dozen terrorist plots in the West that investigators believe were inspired in part by Mr. Awlaki’s rhetoric.

“American citizenship doesn’t give you carte blanche to wage war against your own country,” said a counterterrorism official who discussed the classified program on condition of anonymity. “If you cast your lot with its enemies, you may well share their fate.”

This is tough talk that wouldn’t have been out of place in the much-maligned Bush administration.  But as we’ve noted, the domestic and international law relevant here is immensely complicated and hardly clear cut.  I agree that U.S. citizenship doesn’t give you carte blanche to wage war.  But, as one critic quoted in the article points out, it does protect you from being wiretapped without a warrant or interrogated without your Miranda rights.  So isn’t it weird that the U.S. Constitution doesn’t give you due process before you die in a drone attack, away from any conventional battlefield that is launched by an non-privileged combatant?

http://opiniojuris.org/2010/05/14/the-nyt-belatedly-notices-targeted-killing-debate/

4 Responses

  1. The courts found that national security wiretaps were reasonable and did not require a warrant. That was why Congress passed FISA to add a statutory warrant requirement for domestic national security wiretaps since there was no constitutional requirement under the precedents. However, even FISA does not require a warrant for a national security wiretap on an American citizen overseas. Conversations recorded in a warrentless wiretap may not be admissible in a criminal case, but that is as far as the constitution goes in protecting Awlaki’s phone calls.

    Similarly, the constitution does not protect you from being interrogated without your Miranda rights, it just prevents anything you say during such an interrogation from being admitted as evidence in a criminal case against you. It can still be used against others, or in a civil case, or simply as intelligence. Jose Padilla was interrogated for a year and a half without being provided access to a lawyer, but nothing he said was introduced in his criminal case.

    Every American soldier who is killed in action in Afghanistan is deprived of life without due process of law, so why should the constitution protect the enemy soldier who is shooting at them, or the officer who is planning the attack in Pakistan? We fought a Civil War without anyone suggesting that the constitution precluded the US military from waging war on an enemy army consisting of entirely US citizens on US soil, so why should the rules of due process suddenly prevent military force used against a US citizen who joins a foreign army?

    International law precludes the military targeting of a civilian. Rhetoric by itself does not provide a legal basis to claim that Awlaki is engaged in continuous combat function which is necessary before he can be targeted. However, if he has been found to be a legitimate target engaged in continuous combat function, then the correct form of address is not “Mr”. He is Private Awlaki, or Sarget Awlaki, or whatever rank one might properly attribute to him. Presence on a “conventional battlefield” is not a requirement once one is found to be a legitimate military target under international law.

    If someone thinks this is not true, then the estate of anyone who has been designated as a legitimate military target and killed by a Predator strike may bring a Bivens action against the President and then the courts would have to determine the constitutionality of these actions.

  2. Julian,

    First, I do not think that this “tough talk” was taboo for the Bush administration.  If memory serves, they did a lot of it.  Everything the administration said and did was suspect not because of the policies themselves (or at least not always – torture is at least one notable exception), but because of their underlying claim of inherent, unbounded legal authority to adopt whatever policy the executive thought expedient.  This claim had no true legal basis in U.S. Supreme Court decisions once certain phrases (frequently cited by John Yoo) are placed back in the broader context of the opinions in which they appear.  There is, however, a certain practical political reality to that theory.  I explain all of this in an article, available at:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1539257

    I substantially agree with Howard.  The Civil war provides but one example.  The entire pre-1950 history of U.S. military law (and some post-1950 history) provides further support for the proposition, to include the history of military commissions and the Supreme Court’s decision in Ex parte Quirin (with regard to petitioner Haupt).  Miranda is not absolute and neither are Fourth Amendment warrant requirements and related protections — not in criminal law and certainly not in armed conflict.  (This should not be taken to mean that I agree with the Bush-era wiretapping program in practice.)

    With that said, a “constitutionally adequate” determination of enemy status is required to deprive U.S. citizen public enemies (in the law of war sense, not the FBI sense) of these constitutional protections…and possibly an adequate “public necessity.”  As post-Boumediene habeas cases have shown, the legal or evidentiary standard for determining enemy status is difficult to define.  The burden might also fluctuate depending upon the rights implicated and the surrounding circumstances.  Again, the article I linked above broadly discusses the relationship of military necessity, public necessity and enemy status.  I intend to do more work in this area.

    Prior to Hamdi, no relevant Supreme Court decision of which I am aware dealt with the difficult task of determining whether a citizen was properly considered a public enemy as a matter of law solely on the basis of conduct.  Hamdi stated that a citizen has a due process right to that determination without defining its parameters.  In earlier Supreme Court decisions, an individual’s relationship to a sovereign and/or its army was always a factor. Haupt was deemed an enemy by his relationship to the German government and armed forces.  As for non-international armed conflict, The Prize Cases, for example, looked to the state of citizenship of those whose property was seized in the context of the Civil War.  Citizenship and residence in a “loyal” state was also a factor in Ex parte Milligan.  There are countless other examples.

  3. If someone could release my comment “awaiting moderation” I would be obliged.

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