On the Wittes/Heller Debate over Al-Aulaqi

[John Dehn is an Assistant Professor in the Department of Law at the United States Military Academy. The views expressed in this post are his own and do not necessarily reflect those of the Department of Defense, U.S. Army, U.S. Military Academy, or any other department or agency of the U.S. government]

I agree with Kevin that not every wartime decision of our government is a judicially unreviewable political question. We can certainly debate whether the Supreme Court properly exercised jurisdiction in Hamdan, and whether the Court properly interpreted Common Article 3 of the Geneva Conventions of 1949 (my take on the latter is that it did not properly interpret the text, but effectively and properly stated customary international law). However, I do not believe that the courts determine the existence of an armed conflict or the identity of the enemy without reference to acts of Congress.

For these reasons, I believe the court must decide whether targeting al-Aulaqi is arguably within the scope of war-making authorized by the AUMF, and if so, whether the Constitution allows or requires judicial review of that determination under the circumstances. All of the legal issues Kevin mentions are ancillary to that primary question. Congress has, in effect, declared “war” on certain organizations (and even some “persons” if one reads the AUMF). The courts possess no power to review that decision, only to ensure its application consistent with any applicable domestic and international law to the extent possible, and only in cases over which the courts may properly exercise jurisdiction.

International law does not determine who may be designated an enemy by Congress. It is relevant only to determining what the executive has implied authority to do or not do when carrying out congressional war-making authorization, and then only if Congress has not spoken to the precise war measure at issue.

Congress has already authorized the use of the government’s war powers against certain groups and persons. The decision to do so is primarily vested in Congress by the Constitution according to Supreme Court case law (and may devolve to the President by congressional delegation, see the Prize Cases and others). While Congress cannot declare war on a U.S. citizen, it may authorize the use of war powers against state or non-state actors in which U.S. citizens are or may become members (see Prize Cases, Ex parte Milligan, etc.).

Congress placed no territorial limits on the AUMF, and — contrary to what Professor O’Connell often states — none is dictated by international humanitarian law such that the AUMF may be judicially limited, extraterritorially, to active war zones. Even if it somehow did, under the later-in-time rule, Congress may establish national policy in violation of international law. The Charming Betsy canon of statutory interpretation requires that the courts find Congress’s intent to do so is clear. If al-Aulaqi is within the scope of the AUMF, this requirement would appear to be satisfied. The AUMF should not be interpreted to apply or to be delimited to any specific location. There were no active war zones in which the U.S. was engaged when it was adopted. Those battlefields were created pursuant to its authority. Others may be created (even quite temporarily) if the object of those hostilities is within the scope of the AUMF.

The international law of neutrality and state responsibility is relevant to all hostilities conducted under the auspices of the AUMF. It protects only the legal interests of other nation-states, and only derivatively of their nationals. If Yemen has consented to U.S. military operations there, neutrality is not implicated. The Charming Betsy canon requires (and indeed, the Charming Betsy case itself required) the executive to respect the neutrality of other nations and their nationals without clear congressional authority (or probably ample justification under the law of nations) to violate it.

The most fundamental issues, then, become only whether al-Aulaqi’s conduct brings him within the scope of the AUMF and whether he may be targeted consistently with any relevant international laws regulating war (at least any not superseded by Congress). Kevin does not believe so under relevant international humanitarian law, and I certainly have my concerns. Contrary to what some D.C. Circuit judges think, Supreme Court case law is clear that the resort to war powers by Congress requires the application of relevant IHL by the courts. IHL delimits who or what may be targeted or subjected to other measures of war unless Congress has otherwise stated. In the day-to-day of combat, decisions on these matters are made by mid-to-low-level government agents, meaning soldiers, airmen, marines, seamen and their commanders, without prior judicial review.

The threshold question in this case is fundamentally the same as it was in Rasul and Boumediene. It is whether Congress has somehow authorized (Rasul) and the Constitution allows (meaning it does not involve a political question, there is standing, the case is ripe, etc.) — or whether the Constitution requires (Boumediene) under the circumstances of this case — judicial review of an executive war measure argued to be taken in furtherance of the AUMF. Like Boumediene, the answer to that question may turn on the very unique circumstances of this case. The same or similar factors relevant to the availability of habeas and articulated by the Court in Boumediene are probably going to be relevant to this Fifth Amendment due process question as well, assuming the case is otherwise justiciable.

By way of example, if a soldier were to encounter a U.S. citizen member of an enemy armed organized group on the battlefield, I doubt that due process demands much other than an accurate or even fairly arguable identification of that individual as either a member of that targetable group, or if a civilian, as one directly participating in the hostilities of an enemy. U.S. citizenship is probably unknown. Prior judicial review is virtually impossible and probably not constitutionally required. Post hoc judicial review is possible (perhaps in a criminal trial or Bivens case) but the measure of deference to be afforded such decisions is probably quite great. Al-Aulaqi is not this case.

I could go on, but this is enough to emphasize that the key to this whole discussion is what the AUMF allows, and what the Constitution allows or requires, in this particular case. Compliance with IHL is a secondary consideration that might somewhat inform the threshold question of the authority, propriety or necessity of judicial review, but it does not determine it. The primary issue concerns the scope of hostilities authorized by the AUMF.

For these reasons, in my opinion, Wittes is correct to assume the existence of armed conflict pursuant to the AUMF and to frame this as a targeting question. Kevin is correct to emphasize the importance of al-Aulaqi’s status under relevant international humanitarian law.