The Washington Post on Al-Aulaqi

by Kevin Jon Heller

Ben Wittes calls attention today to a Washington Post editorial defending the targeted killing of American citizens like Al-Aulaqi:

[W]hen a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens. “The imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat” are taken into account before striking, he added.

In the case of an American, the government should go to even greater lengths before carrying out an attack. For example, the president should consider whether the target can be notified of his status and given the opportunity to turn himself in. The executive should also consider making public the general criteria — excluding ultra-sensitive methods and sources — that it uses to designate an individual for the target list.

U.S. citizens do not lose all their constitutional rights when they head overseas, but they also cannot use their citizenship as a shield when they join enemy forces with the intention of carrying out violent attacks against the country or its interests.

The editorial illustrates the fundamental problem with the targeted killing of American citizens.  The Washington Post says that citizens do not lose their constitutional rights when they head overseas, but at the same time it endorses depriving a citizen of his right to life whenever the President determines — unreviewably — that he has “join[ed] enemy forces with the intention of carrying out violent attacks against the country or its interests.”  We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process.  So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?

There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime.  If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding. Either way, the process will strike the appropriate balance between the target’s rights to life and due process and the government’s need to protect the U.S. against terrorist attack.

Proponents of targeted killing should have no problem with this judicial solution, but I can hear the objection now — what if time is of the essence?  What if, instead of having already committed a terrorist act, the American citizen is about to commit a terrorist act?  The objection refutes itself, however, because no one — including the ACLU and the CCR — questions the US’s right to use targeted killing in such a situation.  What progressives object to is what conservatives actually want: a diluted imminence requirement that allows the government to pre-emptively kill any American citizen it believes is playing (to use Wittes’ expression) an “operational leadership role” in terrorism, even if the terrorist group of which the citizen is a part is not planning an immediate attack.

Notice, though, that conservatives’ desire to dilute the imminence requirement actually supports predicating targeted killing on judicial authorization.  First, the less temporally imminent the terrorist attack, the more reasonable it is to require judicial authorization for a targeted killing.  Only when an attack is truly imminent is judicial authorization unduly burdensome. (And again, progressives accept that presidentially-authorized targeted killing is legitimate in such a situation.)  Second, the less temporally imminent the terrorist attack, the more important it is to not deprive the American citizen of his rights to life and due process solely on the basis of an unreviewable presidential determination that he is involved in planning the attack.  Determining with any certainty that a terrorist attack is imminent is difficult enough; determining that a terrorist attack may occur sometime in the future is nearly impossible. So if we are going to permit the government to kill an American citizen because it believes that he is planning a future attack, the last thing we want to do is entrust that determination to the politicized, confirmation-biased, and frequently univocal atmosphere that surrounds the President.  Only an adversarial judicial hearing will do.

http://opiniojuris.org/2010/09/06/the-washington-post-on-al-aulaqi/

7 Responses

  1. If this has been the practice of the Executive Branch for some time, perhaps we better understand the origins of the “Bush doctrine” of preemptive self-defense against nations or threats.  It seems to me that there is an interesting theoretical dissection that remains to be clearly and cogently made between collective (meaning national, or on behalf of a collective body or polity) self-defense against another collective (national or non-state) and collective self-defense against an individual.  This necessarily involves both the right to attack and the right to defend against such an attack.

    In the context of armed conflict, I cannot see Kevin’s suggestion as feasible or desirable.  Assuming for the sake of argument that an American citizen is a combatant member of a hostile armed force, there is no need for judicial consultation.  As the Supreme Court said in the Prize Cases, in such cases the government may exercise both sovereign and belligerent powers.  Attacking a fighter for an opposing force or “combatant adversary” is always legitimate in the context of armed conflict.

    The real sticking point is whether or the extent to which there is or can be a constitutionally adequate determination of enemy combatant or belligerent status when that target is not then engaged in an attack.  What evidence of that status is sufficient, particularly in non-international armed conflict?  Neither international nor national law provides a clear answer, in my humble opinion.

  2. Of course, I never advocated requiring judicial authorization in armed conflict.

  3. I agree with John’s comment.

    I would suggest that the domestic imminence standard that Ben Wittes referred to in his Silver Spring situation and the standard for an American overseas should be the same.  You do not have that imminence US government – you do not get to kill him/her Us government.

    No doubt others feel that we should slip down the slope a bit from the American taking up arms.  Of course I will stipulate that an American killed around clear targets, even if the American is completely innocent, can very well be collateral damage under the “wrong place, wrong time” realities. 

    There are options available:

    1) kidnapping the person a la Alvarez-Machain to bring him back to stand trial in a domestic court.  The question is whether the evidence is sufficient to get a conviction (“more likely than not” standard evidence vs.  “beyond a reasonable doubt” standard evidence).

    2.  Encourage the foreign government to arrest him under their law based on the evidence supplied.  Maybe put the guy in a position so that he commits a crime in that country (like some of the cases we have seen developed in this country against terrorists).  See this Mr. Mobley case http://www.washingtonpost.com/wp-dyn/content/article/2010/09/04/AR2010090403334.html?referrer=emailarticle
    where it sure looks like the guy is up a creek without a paddle.  I would be curious to know whether the US is asserting diplomatic protection to make sure the guy gets a fair trial.  I mean it sure looks like he has more at risk than a Singapore caning.

    3. Encourage the foreign country to turn the American guy over to the United States.  If we can not charge the guy, at least we can revoke his passport I would think (though there are others who can verify this).

    4. FISA style watching of the guy/gal for as long as we think he is a problem.

    5. Twisted stuff the CIA is good at like making the guy appear to be a CIA asset so that the people he associates with that we think are bad persons will kill him.  Don Cheadle’s movie Traitor is really very interesting.  I tell my Muslim friends, by the way, that if they are around someone who is espousing violence against the United States, assume they are a US government agent.  We went through this in the civil rights movement in the mid-60’s.  Nothing new under the sun.

    Best,
    Ben 

  4. Kevin,  Could you explain the grounds on which you would permit killing of a U.S. citizen w/o judicial authorization in armed conflict (by which I presume you also mean to include the limiting condition of “on the battlefield” or “in the zone of armed conflict”) but not permit the killing, absent judicial authorization, of a U.S. citizen engaged in hostilities against the U.S. but not physically located within the zone of active combat?  What is it about the former situation that affects the “target” citizen’s constitutional rights?

    Is your difficulty with the reported targetting of al Aulaki’s his designation as an “enemy combatant,” or is it with his location outside the zone of active combat with al Qaeda, or some of both?

    Putting aside for a moment the complicating rules of jus ad bellum and the sovereign rights of Yemen (or whatever third country it might be), could not a belligerent power engaged in an armed conflict target an enemy combatant wherever his found, even outside the zone of active combat (e.g. on the high seas or in a failed state)?

    Looking forward to your reply.  Thanks.

  5. After he left West Point and escaped to British territory, Benedict Arnold was granted a commission. He was in command of the attack on New London, CT which basically burned the town down. Of course, this was before the Constitution, but the point is that a US citizen can be on US soil and still be an enemy combatant subject to lethal military force. He just has to travel to enemy territory and enlist or get commissioned into an enemy army that then initiates an attack on US soil.

    There is nothing in domestic or international law that distinguishes a Predator strike from sniper fire.  Nothing distinguishes US soil from foreign soil, provided that the US soil is the site of an attack by a force of foreign enemy combatants. Nothing distinguishes a foreign officer who is a Yemeni from one who is a US citizen.

    I believe that everyone in the world, except certain critics, can distinguish between the status of Benedict Arnold in command of an enemy armed force attacking a US city and some little old lady in Cleveland who donates to the wrong charity. I would suggest that military decisions be made by the people who can make this distinction and not by the people who appear unable to understand the difference. Fortunately, the CCR does not appear to control any armed units.

    In order to be subject to attack, you have to be a member of a regular army or else a member of an armed unit of an enemy engaged in an armed conflict with the US who is engaged in continuous combat function. If someone is, as has been suggested, simply a vocal critic of the US then he is a civilian under international law and may not be a target of lethal military force. This is true of both aliens and US citizens.

    US forces appear to have determined that Al-Aulaqi is a high ranking officer in an enemy armed force engaged in continuous combat function against the US. If that is true, it does not matter that he is part of a covert enemy base in Yemen or that he is a US citizen. Target discrimination during an armed conflict is a purely military decision. The judiciary has no power or authority to decide if someone in Yemen is or is not an enemy officer engaged in continuous combat function. We hope the military will make the decision correctly, but it is their exclusive decision to make.

    Since citizenship is irrelevant to the legal issues involving the targeting decision, it should not become a lever to try and involve the courts in a purely military matter over which  they have no competence, no jurisdiction, and no authority.

  6. If Aulaqui = Benedict Arnold, yes he is a totally legitimate target.  The question I would ask is analogizing him to a Serbian radio station.  If he is a loudmouth critic of the US who broadcasts his stuff but does not go so far as providing military advantage creating stuff through his work, should he be a target?  The use of a phrase like indirect participation would seem to cover a great deal of ground where legitimate dissent is permitted – ground that is between Benedict Arnold space and the little old lady space. The military planners and targeters are capable of finding appropriate targets, but I can see some civilian leader being offended by this loudmouth and wanting to show he/she is tough by putting him on a list to be “whacked.”  And said civilian wanting this done not through the military but through the CIA or other intelligence agencies assets which have shown themselves over these years to be particularly blind to anything other than “what the boss wants.” 

    State repression of dissent is not a new phenomemon.  I would remind Americans of periods in which persons such as Richard Wright left the States out of reaction to what he would have to live in America.  He was said to have been harassed by military intelligence during his years in Paris and there are some who were there at the time and who believe that the last person with him in his hospital room in 1960 in Paris was a military intelligence agent who killed him.  This became an issue again in 1992 when that person showed up at a conference in Paris on African-American Writers in Europe.  We can think of people like WEB Dubois living in Ghana or Stokely Carmichael living in Guinee along the way.  Does being a loudmouth American citizen dissenting overseas now carry with it the danger of intelligence/military targeting?

    Given most Americans in the US never think about Americans who live abroad and there is a tendency to assume Americans who do not live in the US are less patriotic, there is a distinction between an alien and a citizen at play here that I think can not be too rapidly dismissed.

    Best,
    Ben

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