A Quick Thought on the “Surrender” Option

by Kevin Jon Heller

In its motion to dismiss the ACLU/CCR lawsuit, the government argues that the plaintiffs lack standing to bring the lawsuit on al-Aulaqi’s behalf, because al-Aulaqi has the option of surrendering to the government and bringing the lawsuit himself:

Defendants state that if Anwar al-Aulaqi were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner, legal principles with which the United States has traditionally and uniformly complied would prohibit using lethal force or other violence against him in such circumstances…   Anwar al-Aulaqi would have the choice at that point, as he does now, to seek legal assistance and access to U.S. courts.

Ben Wittes made the same argument a few weeks ago:

The idea that Anwar al-Alauqi is being targeted for death and has no means of availing himself of his rights as a U.S. national is wrong. Like the hostage-taker, he has a remedy that will ensure his safety and give him the opportunity to defend himself: He can turn himself in. He can knock on the door of any U.S. consulate and say, “I hear you guys are looking for me.” No special forces guys, Predator drones, or air strikes are going to take him out if he does this. In other words, this situation is, in conceptual terms, a fairly close analogue to the one in which cops surround a building and say, “Come out with your hands up or we’ll shoot.”

Ben and I disagreed about the “surrender” option at the time, and I continue to find it unconvincing even with regard to al-Aulaqi.  But a post by Glenn Greenwald today reminded me that there are three other Americans whose targeted killing has been authorized by the President.  Which raises the question: do those Americans have the “surrender” option?  Have they been notified that, if they want to assert their constitutional rights, they need to turn themselves in to “the proper authorities” before the government kills them?  Or are they completely oblivious to the fact that the President has approved their execution?

It’s an important issue.  The government’s standing argument may be plausible with regard to al-Aulaqi, whom we can safely assume knows that he is on the President’s hit list.  But it is only plausible with regard to the other three Americans if they have been notified of their status. If they haven’t, how do they assert their rights?  Either they must be informed that they can be killed at any time — something I think the government is unlikely to want to do — or an appropriate party must be allowed to assert their rights on their behalf.

Here’s a suggestion: how about the ACLU and CCR?

http://opiniojuris.org/2010/09/29/a-quick-thought-on-the-surrender-option/

4 Responses

  1. In every war, every enemy soldier knows that when they get the chance, US soldiers are going to shoot at them. Every enemy soldier knows that if he does not want to be shot at, he can surrender. Every soldier knows that once he surrenders, the laws of war protect him from lethal force. There is no need to notify the individual enemy soldier of this option.

    Once in custody, an enemy soldier who is a US citizen has access to US courts. Someone accused of being an enemy combatant who disputes his combatant classification has an opportunity to make this claim before an impartial tribunal (this is the Hamdi decision). This right, however, exists only after surrender.

    An enemy soldier who admits his combatant status has no rights by virtue of US citizenship with regard to either targeting or detention. However, a US citizen who is not an enemy combatant has due process rights with regard to both targeting and detention, and furthermore, as a civilian he may not be targeted with lethal force under international law. If there is a doubt as to status, then as the Supreme Court did in Hamdi, the courts must proceed as if the citizen is a civilian until proven otherwise.

    However, a third party cannot deny combatant status. Only the alleged enemy combatant can make that declaration. That said, there is nothing in the law that requires him to surrender before he goes to court. For example, suppose al-Aulaqi owns some property and the state wants to take it and use it for public purposes without compensation. He does not have to surrender to challenge this violation of his rights. He need only authorize a lawyer to argue the case on his behalf, or if he wants his father to act for him he only needs to give his father a power of attorney. The same is true here. As long as he has properly designated someone to act on his behalf, then there is no issue of standing.

    Surrender is a plausible argument against an injunction, but not about standing. If the enemy combatant wants the US to stop shooting at him, he only has to surrender. He does not have the right to remain in the field engaged in war against the US and to petition the court for an injunction to prevent the US from shooting at him.

  2. Any American citizen is free to travel to Helmand province, dress up as an Afghan, and carry an AK-47 into the mountains. It is possible that US aircraft will incorrectly identify you as a Taliban combatant and you will be killed. Some measure of error is inevitable in any targeting decision during an armed conflict.

    Nobody doubts that you have constitutional rights, including rights to due process. Nobody doubts that such a US attack on you would be unjustified and wrong. However, if you go into court to get an injunction to prevent the US from accidentally shooting at you, it does not seem unreasonable for the government to argue that even though you have rights and even though such an attack would be illegal, nevertheless if you don’t want to be improperly targeted you may have to give up your freedom to go to Afghanistan, dress as a Taliban, and act as a Taliban.

    There is some conflict between your freedom to travel, freedom of speech, freedom of association, and any abstract right you have to not become collateral damage in an armed conflict. If you exercise your right to put yourself at risk, in Afghanistan or among the AQAP in Yemen, then the courts are not an appropriate remedy.

  3. The point is I would suggest a little different.  The American Government is asserting the right to kill you because it believes you are an enemy combatant.  It is also asserting the right to tell you you are free to surrender to have your status “worked out.”

    This may be a very subtle point for everyone here to imagine but let me put it in terms that you may appreciate.

    The American citizen is free to say “you are crazy American government, this is trumped up, and to hell with you as I live in Yemen, and you better not target me”.  Or even better yet, say nothing.

    Just because the person with the monopoly on violence seeks to bend you to its will (i.e. the government) why do you have to bend?  Nothing in patriotism or citizenship requires that of you.  Free to be left alone. Corey Giles back in the Salem Witch Trials era said as much.  As did some of the Japanese-Americans in internment camps who said they were willing to serve in the military provided their people were taken out of the camps.

    And yes, if the US gets it wrong you may be killed and that is the risk you face as the American abroad.  But, maybe that is a risk that you are willing to take because you find the government targeting you oppressive for whatever reasons you like. 

    One might not deign to honor the craziness that one considered to be the position of one’s government.

    Best,
    Ben

  4. During WWII the non-citizen German residents of the US were also interned in camps, particularly when they were members of the German-American Bund. Before Pearl Harbor, a number of US citizens of German heritage went to Europe and some joined the Wehrmacht. They too may have complained about the oppression of the American government controlled by what they viewed as its “Jewish conspiracy”. They may have had a heart felt belief that the US should not side with the Jews and other “inferior races.” US citizen German soldiers may have died on the German side on D-Day, and US citizen civilian collaborators may have died in the bombing of German cities.

    I do not feel bad about that.

    One might not deign to honor the craziness that one considered to be the position of government critics…

    … especially traitors.

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