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

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 jagcnet.army.mil.) 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.