New Article on Reid v. Covert, and My Question re Extraterritoriality and the Constitution

by Kenneth Anderson

Over at Lawfare, I’ve flagged a fine new article in the Military Law Review, “The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial,” by Captain Brittany Warren (Vol. 212. 2012, p. 133; link goes to The article goes into fascinating detail about the actual facts and circumstances of Reid v. Covert, as well as a discussion of historical practices dating back to 17th century Britain and the application of the Articles of War to “camp followers.”  It then comes back to the present to discuss the circumstances of civilians in courts-martial in US law.

Let me add a comment that goes far afield of Captain Warren’s article, but one raised in my mind by the detailed discussion she offers of the “murdering wives case” in its own context and time.  (I don’t want to suggest that my discussion reflects her views in that article, so I’ve decided to make it a separate post here at OJ.)   Reid v. Covert is a case sometimes raised in a different context – one for which it is not really dead-on, however, though sometimes referenced in relation to it.  Reid is the question of the extraterritorial application of the US Constitution, and whether a civilian US citizen lawfully present on a US military base in time of peace, with a SOFA in operation (ie, 1950s Germany), is entitled to a regular US civilian trial with all Constitutional protections in a capital murder case rather than trial in military court under the UCMJ – answer, yes. But, if that’s Reid, what about a US citizen who has fled the US to places not controlled in law or fact by the US, and is engaged in violent operations against the US from abroad as part of a terrorist group – is that US citizen nonetheless entitled to trial in a regular civilian court, or at least some form of judicial due process, and at least an implication that this US citizen can’t be lethally targeted in the way that a non-citizen lawful target could be?

This, of course, is the case of the targeted killing of Anwar al-Awlaki; I’ve loosely summarized the government’s view of the facts in my hypothetical above, and its answer to those questions is no.  Warren’s article is not addressed to these questions, and my comments here should not be imputed to her.  However, because Warren’s article gives the actual historical and contextual facts of Reid v. Covert – “murdering wives” – it suggest to me a lot of reasons why the circumstances in Reid are so far from the situation of Awlaki that Reid doesn’t really say much about it.  Reid seems to be raised sometimes in discussions of Awlaki for the generic proposition that “the Constitution follows the flag.” But of course it’s much narrower than that, both on its facts and holding – US civilian citizens in foreign territory in peacetime that is directly controlled by the US under a lawful SOFA agreement.

When Awlaki first came up, I turned to one of my favorite sources in this area, Kal Raustiala’s outstanding book on extraterritorial application of the US Constitution, Does the Constitution Follow the Flag?  (Kal’s book was discussed here at OJ in an extensive series of posts when it was published in 2009; the other discussion I’ve looked at is Bobby Chesney’s article on targeting Awlaki, but it is focused on international law questions.)

Yet that book does not directly take up the Awlaki question, either.  In large part, this is because it is a book about the effect of territoriality, and control of territory, on Constitutional application.  Written before targeted killing was on the table of public debate, Kal’s book addressed an important, but separate question, the one raised by Guantanamo (though not limited to it) and foreigners held there.  Constitutional rights (with some exceptions related particularly to immigration law, not relevant here) apply territorially in US law – if you are a foreigner who is tried for murder or something else in a US court, your basic Constitutional rights in the trial are the same as anyone else’s.  Speaking loosely, there’s not one regime for citizens and permanent residents and another for foreigners.

If that’s the case, the book asks, and if Reid refers to the fact of actual control and lawful control of territory in peacetime, why shouldn’t the Constitution apply to Guantanamo in the same way?  But the question in Awlaki is different – if for no other reason than the US did not have control over the territory where he was hiding, either effective or legal, among many other differences.  If that’s the case, it’s hard for me to see how Reid says very much about it.  Attorney General Eric Holder addressed this question in a speech at Northwestern Law School last year – notably saying that although a US citizen is entitled to some form of due process, it’s a truism that what process is due varies according to circumstances – and it need not always be “judicial” due process.

I’ve put the relevant piece of the AG’s speech below the fold.  Yet it doesn’t seem to me that the AG’s framework relies on Reid v. Covert, though if I’m mistaken about that I’d be interested to find out how Reid might be seen to shape the AG’s framework – or be in conflict with it.  One might argue that Reid conflicts with the AG’s claim that Constitutional process need not be judicial.  That is, Reid might be offered to say that a US civilian citizen is entitled to Constitutional protection even extraterritorially (as AG Holder perhaps acknowledges by referring to the Fifth Amendment; I qualify that because it might be intended to say something less than we might automatically assume), and that Reid disallows a US civilian being tried in military court rather than civilian court and, thus, it disallows anything other than regular US civilian court review in an Awlaki circumstance (leaving all other issues aside).

But then there’d be an extended discussion of control and territoriality, presumably, by way of counter-objection, to argue that Reid is inapplicable in territory outside the legal boundaries of the US save in narrow areas under its legal and factual control.  (And also leaving aside other quite possibly dispositive differences, such as the existence of hostilities not peacetime, and the fact that this is targeting in the conduct of hostilities and not detention or trial of a person in the government’s hands, in order to focus just on territoriality.) Another way of putting this, I suppose, is that Reid is a case about the reach of the UCMJ in a still relatively early point in its development, more than extraterritoriality and the Constitution as such.

Or to put my question still another way, if an Awlaki-like situation were being litigated today (and leaving aside any other reasons why it might get tossed out, on grounds such as political question, etc.), what relevance, if any, would Reid have? And how far, if at all, would it get you in actually answering the question of the process that is required, either in support of the AG’s proposition or against it? Or is Reid, as I tend to believe, simply too factually different to have much purchase?

(Let me invite Kal to correct me where I might have his book wrong, if he likes, or to send me a guest post to put up on the Awlaki question if he’d like to give his view as a leading academic expert on Constitutional extraterritoriality.)  

So: AG Holder at Northwestern in 2011:

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat.

Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face.   The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws.   So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.

Let me be clear:   an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.   As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties.   Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.   Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear.   Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.

Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question.   It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel.   Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack.   In that case, our government has the clear authority to defend the United States with lethal force.

8 Responses

  1. Response… The government’s hypothetical case is flawed, since it never demonstrated that Anwar al-Awlaki was engaged in violent operations against the US from abroad when it was provided the opportunity to present its evidence in Court and explain how his name ended up on a “kill” list.

    Reid v Covert clearly held that all of the branches of government are creatures of the Constitution and that their powers are subject to its limitations and prohibitions regardless of any territorial arguments:

    “At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.”
    The Court also held that it would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights – let alone alien to our entire constitutional history and tradition – to construe any section of the Constitution as permitting the United States to exercise power without observing the concomitant constitutional limitations and prohibitions.
    The Constitution envisioned that even those citizens who wage war against the United States or give aid and comfort to its enemies would be afforded the minimum of legal protections guaranteed in Article 3 Section 3 of the Constitution. It would be an extremely odd result if the government could ignore the Bill of rights and murder a citizen, far away from any battlefield, by simply accusing them of treason, while deliberately concealing the so-called classified sources of information that led to such a conclusion.

    The Court noted that any such construction would amount to an amendment of the Constitution in a manner not sanctioned by Article V, It said: “The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.” That seems to be a sufficient answer to Eric Holder’s argument.

  2. P.S. In Reid v Covert the Court stressed that the language of the 5th Amendment, i.e. “No person” means “everyone” who is not attached to the army, or navy, or militia in actual service. It specifically cited cases of civilians, like Milligan, who had been accused of waging war on the United States. So the opinion was not limited in scope to the “murdering wives”:

     “Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal Constitution; and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right – one of the most valuable in a free country – is preserved to everyone accused of crime who is not attached to the army, or navy, or militia in actual service.”

  3. I was under the impression that half of our nation once waged war against the other half. I’m assuming at least one of the hundreds of thousands killed was a citizen at that time. Perhaps Jefferson was rolling over in his grave…but I doubt it, since he was the guy who sent the Navy to Tripoli over a money dispute (and didn’t really question whether or not any of the opposing side might have been a citizen of the US by birth, perhaps he just assuming…but I’d think if he were the type of purist of such posthumous regard he would have checked, however infeasible). 

    SOFA agreements offer both exclusive jurisdiction and shared jurisdiction. Under shared jurisdictional authority the native country often sets the rules, depending on the nature of the offense. To my knowledge we have no SOFAs with Yemen so I am not sure how the wives’ cases in question would apply. Under other circumstances they would be tried by the country of residence (or subject to whatever law, no matter how arbitrary, even perhaps killed summarily depending). I see nothing precluding the US from acting with the Yemeni government to police their state, even if the culprit happens to be a US citizen.

  4. Response…
    Hostage is correct that Reid recognized that the U.S. Const. applies abroad and that the U.S. Exec. is entirely a creature of the Const. and can take no action here or abroad in contravention of the Const. (thus, regarding aliens, the real question should be not whether aliens have rights under our Const. but whether the Exec. has authority under our Const. to do certain things aborad). There are other relevant cases as well.
     But, what does the Const. require?  “Due” process, for instance, has to be interpreted contextually.  Is a U.S. citizen who fights with an alien enemy abroad immune from targeting? No, e.g. Ex parte Quirin (re: no general immunity of a U.S. citizen).  Also, international law has been used by some of the Justice of the S.Ct. as an interpretive aid — with respect to what process is “due,” what is “cruel,” what speech is protected speech. etc.
      See 18 ILSA J. Int’l & Comp. L. 565, 574-76 (2012); 19 J. Transnat’l L. & Pol’y 237, 262 n.60 (2010). 

  5. Hostage and Jordan: Of course I’m not questioning the broad sweep of Reid’s language or the general proposition that it embraces.  However, if I narrow the question down to what I raised at the end of the post – in the Awlaki type case, do the facts of Reid might appear so different from those of my Awlaki hypothetical (assume my description in the hypo) that a court, or SCOTUs, might conclude that, sure, the most general propositions of Reid are true, but that anything more robust from Reid is specific to those facts? Hostage has given a strong statement of one side of that proposition; is there a case to be made for the other side of it?

  6. Liz, I served 21 years in the military, which included several assignments to positions on USAF Major Command and DoD Operational Command headquarters staffs.

    The decision in Little v. Barreme, 6 U.S. 170 (1804) established that President Jefferson didn’t have the inherent power to violate an ordinary statute, much less a constitutional prohibition. It also established that members of the armed forces who obey unlawful orders do so at their own peril. After the Rome Statute entered into effect, the governments of several states have filed Article 12 declarations accepting the jurisdiction of the Court with retroactive effect for all crimes committed on their territories since July of 2002. The ICC can exercise jurisdiction on the territory of any state under one of those special agreements – and new governments can always adopt a “clean slate” policy regarding existing Article 98 or SOFA agreements.

    Kenneth, the Anwar al-Awlaki case is simply a bad example. I don’t disagree that the government can act in cases where citizens are engaged in classical combat-style operations against the United States or in cases where they participate in violent operations as part of a terrorist group if the need for a response “is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”
    I obviously don’t think that the Constitution delegates the power to any branch of government to establish kill lists and carry-out extra-judicial killings in the cases of Treason described in Article III Section 3.
    It’s probably constitutional, but draconian, for our Courts to convict a person of treason on the basis of testimony regarding pure political speech, if it “gives aid and comfort to an enemy”. But the government didn’t pursue that course of action in the al-Awlaki case or present any evidence that he was personally engaged in planning or conducting any acts of violence.

  7. Again, international law should be relevant re: what process is “due” and, contrary to Holder, an “imminent threat” is certainly not the UN Art. 51 test and an imminent threat is not even a threat yet.  He should have used the phrase “threat of imminent attack” and then he would be impliedly arguing for a relaxation of the in case of armed attack requirement in favor of anticipatry self-defense.  And Hostage, the Caroline test offered by Secretary Webster concerned the method or means of self-defense and was too high a standard– as all admitted that the rebel attacks were ongoing — and once an armed attack occurs or a process of armed attacks occur it is quite necessary to respond.

    Several other cases were cited in Boumediene and then there was U.S. v. Tiede (1979), which quoted Reid, Ex parte Milligan,etc.  Read Herbert Stern’s decision in Tiede. 

  8. Response…Re:”And Hostage, the Caroline test offered by Secretary Webster concerned the method or means of self-defense and was too high a standard”
    I was pointing out that I have no disagreement with the right of the government to take action under the circumstances outlined in that particular customary law standard, while pointing out that a charge of waging war on the United States or adhering to one of its enemies doesn’t inherently involve a “political question” that lies beyond the remit of the Courts in line with the rules of evidence contained in Article 3, Section 3 of the Constitution.
    The government has a responsibility to provide for the common defense against terrorist attacks and to respond appropriately once thy have occurred. But there have always been limitations on its powers, such as the prohibition against bills of attainder or holding persons answerable for capital offenses without due process of law in the absence of any imminent public danger. US drone attacks killed 3 US citizens in Yemen in as many weeks, including the attack that killed al-Awlaki’s 16 year old son. The government subsequently alleged that the boy was an Al Qaeda operative.
    The Bush administration alleged that a secret relationship existed between Iraqi officials and Al Qaeda. The administration also alleged that they were conspiring to launch terrorist attacks on the United States. After the invasion of Iraq, the 9/11 Commission, declassified Defense Department reports, and the Senate Select Committee on Intelligence concluded there was no evidence to support those allegations. Labeling alienated Muslims as “terrorists” and summarily killing them creates more alienated Muslims, while contributing to the theoretical state of necessity.     
    The UN Special Rapporteur on Extrajudicial Executions has reported that thousands of people have been killed in drone attacks and that there has been a dramatic increase in the last three years. There’s no evidence that the persons being targeted are necessarily combatants or that they are operating under the theoretical umbrella of Al Qaeda. Undoubtedly, many have simply grown tired of US armed intervention, including what they feel are unjustified drone attacks against their civilian brethren.

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