16 Sep What If Al-Aulaqi Was in Phoenix?
Ben Wittes has a post at Lawfare today discussing ways in which the Obama administration might be able to avoid litigating the ACLU/CCR lawsuit challenging Al-Aulaqi’s targeting. One of his preferred responses is the “political question” doctrine; in his view, “enemy targeting” is a classic example of a political question with which the judiciary should not interfere.
I would not be surprised if the court ultimately agrees with Wittes. I would, however, ask him (or readers) to answer two questions:
1. Politics aside, does the Obama administration have the legal right to kill an American citizen allegedly associated with Al-Qaeda who is living in Phoenix?
2. Standing aside, if word leaked out that the Obama administration intended to kill that American citizen living in Phoenix, should the judiciary should invoke the political-question doctrine to avoid litigating a challenge to the planned attack?
I have been waiting a long time for someone who defends the targeted killing of Americans away from the battlefield (i.e., in a situation that is not covered by IHL) to answer the “inside America” hypothetical. It is obviously exceedingly unlikely that an administration would ever order a drone strike in a domestic location. But it is certainly not outside the realm of possibility that one would rely on more traditional methods to conduct an assassination inside the U.S. So I am curious what conservatives believe are the legal limits on such targeted killings.
It’s a fatuous hypothetical, though, since the only places we ever need to use targeted killing are outside of US control, whether it’s a battlefield (Afghanistan) or not (Yemen, etc). If Al-Aulaqi was in Phoenix, the Phoenix PD and FBI would be able to handle him.
“If Al-Aulaqi was in Phoenix, the Phoenix PD and FBI would be able to handle him.”
I think you are missing the implicit notion that once executing a US citizen far from any combat situation, and without judicial review, is allowed there is no logical or legal reason to disallow it within the US.
It is clear that someone who has never left the US has had no opportunity to formally enlist in a foreign armed force and thus has not become a combatant. Someone who supports a foreign enemy as a civilian may be subject to prosecution, but civilians are not subject to military targeting whether in Phoenix or Afghanistan. Someone who has gone overseas and enlisted in a foreign armed force may return to Phoenix. In doing so he takes himself “hors de combat” and, therefore, is no longer subject to military targeting. It is difficult for someone who is engaged in continuous combat function in Yemen to avoid interrupting his military service when he returns home to a completely civilian context. On the other hand, the 19 hijackers on 9/10 were inside the US and where engaged in continuous combat operations. So if someone is in the US as part of an active covert military operation, his location does not preclude the US from using military force against him, and the use of military force (instead of law enforcement) against a unit of a foreign armed force engaged in an attack inside the US (against a military base or nuclear facility… Read more »
Do other governments have similar rights, or is this an example of US exceptionalism? If for example the Russian government asserted a right to kill Russian, or American, citizens in Phoenix, how would this be distinguished? And if there is a ‘right to target’, is there a commensurate duty to submit to targeting? Would a person targeted in Phoenix, subject to such a duty, be committing a tort by evading his/her own death? These questions may be barmy, but no more so than the one posed; they all seem to flow logically from the starting assumption that the executive has an unfettered power of life and death over subjects/citizens, as it claimed it did before Magna Carta. Tocqueville is an authority for this; Alexander Herzen recounts how, arrested by a lynch mob in 1848, “The first man we met was a représentant du peuple with the silly badge in his button-hole: it was Tocqueville, the writer on America. I appealed to him and told him what had happened: it was no joking matter, they kept people in prison without any sort of trial, threw them into the cellars of the Tuileries and shot them. Tocqueville did not even ask who… Read more »
An interesting problem: Russia is engaged in a hypothetical Non-International Armed Conflict with an al Qaeda equivalent organization in the Caucasus. Fred Smith is a US citizen and member of this organization engaged in continuous combat function against Russia, and is thus an enemy combatant in that conflict. Had he been a member of the regular uniformed armed forces of a state party to an IAC, then US neutrality would have prohibited his entry into the US, or required the US to intern him in a POW camp for the duration of hostilities. That is, his uniform supersedes his citizenship, which is a fairly standard feature of international law recognized in US precedents. However, he is not in uniform but is instead a combatant member of an armed force engaged in a NIAC. If he enters the US, what are our obligations as a neutral party? Can any state be a neutral party to a NIAC? Can we intern an unlawful combatant under the same law of war principles that allow us to intern a lawful combatant? If we refuse to detain or impede Fred when he enters the US, have we violated our obligations to Russia, and does Russia… Read more »
@ Howard Gilbert, from your responses I deduce you accept that the targetted individuals are combatants. My point was that such a statement is incompatable with the notion “innocent untill proven guilty.” In other words, how do you know the executed person is a “terrorist?” How do we exclude the possibility that the target is merely a political opponent being eliminated?
Of course, The President never lies and we should always trust him at his word. Call me paranoid but I want government to remain subject to oversight, Congress and the judiciary. The trias politica was invented because through history politicians have abused their position for personal gain. So, even with those bearded individuals with scary names I want some independent review of the evidence to ensure that The President does not abuse the magic words “National Security” for his own benefit.
[…] John Heller asks in response to my post the other night: 1. Politics aside, does the Obama administration have the […]