Last week, Ryan, Micah, and I discussed the legal and moral implications of targeting Anwar Al-Awlaki, a terrorist who happens to be a U.S. born citizen. Since then Adam Serwer has pointed out a speech that may shed some light on the issue. In a recent lecture to the American Society of International Law, State Department Legal Adviser Harold Koh provides a justification of the administration’s use of drone strikes against suspected al-Qaeda targets that is relevant to our discussion.
On targeting “enemy leaders” for use of lethal force:
[S]ome have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.
On whether doing so would constitute an extrajudicial killing:
[A] state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.
On whether doing so would violate the domestic ban on assassination:
[U]nder domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
As Kenneth Anderson at The Volokh Conspiracy says about Koh’s speech, “[I] think also that targeting al-Awlaki is a good idea, legally justified, and moreover think this a persuasive basis for so concluding.”
I completely agree. I suspect, however, that my buddies do not.
April 15th, 2010 | 1:33 pm
“The Executive Power shall be vested in a President of the United States of America.” So begins Article Two of the Constitution. One need look no further than this, and to the President’s power as Commander in Chief, and to his unique constitutionally mandated oath to “preserve, protect, and defend” to justify targeting al-Awlaki. Koh’s argument is representative of the kind of legalistic thinking that threatens the Constitutional basis of the President’s exectuive power. This is the way the law professoriate, Koh being in the forefront of this profession, sees all questions of power and right: does it pass judicial muster? The Al-Awlaki case is not a judicial matter. “First Things” should know better than most the dangers of judicial imperialism.
April 15th, 2010 | 3:42 pm
Joe, having come to Jesus on torture at least in part because of your impassioned case against it and in part because of my own less than altruistic consideration of the broader implications, i.e., if they can do it to them, what exactly stops them from doing it to me, I guess that your position on this matter just flat out leaves me gobsmacked. Like the “ticking bomb” scenario, it is not the supposedly obvious cases like this where people can get on the bandwagon because “some folks just need killin’.” It’s the logical extreme, and in this case its strong likelihood based on human nature and past history, that once you start getting close to the line in the sand, it just gets easier and easier to justify that small step over. Do you trust your government implicitly? Do you trust the Office of the President of the United States, regardless of the holder, not to abuse this power? Does the fact that the President can be held accountable ex post facto really give you that much comfort? It’s pretty simple in my mind, Joe–if he can kill Al-Awlaki without real judicial process, what really prevents him from doing it to any of us?
Steve, you are right on target, and you are right to call out First Things in particular on this. Was it not Fr. Neuhaus himself who made the case for the church being a part of the public square because its appeal to transcendent values left it in the position to call Caesar to account.
April 15th, 2010 | 4:33 pm
Steve This is the way the law professoriate, Koh being in the forefront of this profession, sees all questions of power and right: does it pass judicial muster? The Al-Awlaki case is not a judicial matter. “First Things” should know better than most the dangers of judicial imperialism.
I think you misunderstand Koh’s speech. He is not saying that it is a “judicial matter” but is merely explaining how the policy is consonate with international treaties that the U.S. has agreed to (and which the Constitution binds the President to enforce).
Rev. Mike It’s pretty simple in my mind, Joe–if he can kill Al-Awlaki without real judicial process, what really prevents him from doing it to any of us?
Steve, you are right on target, and you are right to call out First Things in particular on this.
I think you missed Steve’s point. His position is that the President has the right to target Al-Awlaki because he has the Commander-in-Chief and that he does not have to get the approval of the judiciary branch to make that decision. His concern, as I understand it, is that he thinks Koh is trying to justify the policy as having been cleared by the judiciary.
As for my position, I’m a bit unclear on what you find objectionable. This is not a power that Obama invented but a power that presidents have had since George Washington. As Koh says: “[A] state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”
This has always been the standard. There is nothing like “diplomatic immunity” on the battlefield that protects a belligerent just because they are a U.S. citizen. If an American on the battefield joins the other side, takes up a weapon, and points it at a U.S. soldier, we don’t have to give him a trial before we can shoot him. It’s a matter of self-defense. Once you take up arms against the United States—as Al-Awlaki has done—then our government has a duty to protect its citizens from you.
This is where I agree with Steve. We’re so used to the “imperial judiciary” that we’ve come to believe that it can’t really be legal unless it has been rubber-stamped by a court. But the executive branch has the duty to protect its citizens from belligerents and is not required to get a court warrant before it can target them on the battlefield.
As for the slippery-slope argument, I don’t understand how that applies. You ask, ” if he can kill Al-Awlaki without real judicial process, what really prevents him from doing it to any of us?” What prevents him from doing it to us is the scope of his power and the legal legitimacy in which it can be applied. The President does not have carte blanche to kill anyone he wants. But he does have the authority to target those who have publicly declared themselves to be enemies of the United States and who have stated that they will attempt to kill Americans at every opportunity they get.
But to clearly answer your question, what prevents him from doing it to us is that the President has no legal authority to target those of us who have not taken up arms on foreign soil against the United States. There are no special rights given to our enemies just because they may hold a U.S. passport.
April 15th, 2010 | 4:58 pm
Mr. Carter,
Thanks for the thoughtful response. I may have overreached a bit, but Harold Koh is a firm believer that executive branch lawyers, and ultimately the federal judiciary, determine the parameters of how this nation should conduct itself in a conflict. This is judicial activism at its worst: the court’s “political questions doctrine,” the idea of deferring to the elected branches of government on matters falling under their constitutional purview, is, for all practical purposes, dead. Simply put, according to the Constitution and to almost 220 years of tradition, Congress and the President are constitutionally empowered, among other things, to set the rules regarding the treatment of enemy combatants and the measures deemed necessary to gather intelligence and conduct a war. In the end, it’s the province of the elected branches of government to interpret our treaty obligations in matters of war. Let me just add that in 2004 Koh wrote that the United States’ disregard for international law had placed it in “the axis of disobedience” along with North Korth. That gives you some indication of this man’s perspective….
April 15th, 2010 | 5:02 pm
…excuse me, the next to last sentence should read “North Korea.”
April 16th, 2010 | 7:46 am
I don’t know, Joe … you place an awful lot of trust in folks who seem not to be constrained by much more than their own will to power, regardless of who historically has and has not had that power all along. I try to resist my own latent tinfoil hat tendencies, but I just can’t get on board with this one.
April 16th, 2010 | 7:52 am
P.S. Initially, yes, I missed the point Steve was making on first read, but I re-read it before I first commented, and it was on that basis that I objected to the implications of that interpretation. Slippery slope … hier stehe ich; ich kann nicht anders.
April 16th, 2010 | 9:41 am
As one who has argued against this policy here, I will concede that a legal and constitutional case can be made for it. However, I would disagree that the moral or even strategic merits of this policy have been adequately discussed. For your consideration I would recommend the following:
The Risks of the Drone War
http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer
Civilian Casualties of the Drone War
http://www.wired.com/dangerroom/2009/10/up-to-320-civilians-killed-in-pakistan-drone-war-report/
Strategic Considerations
http://www.salon.com/news/terrorism/index.html?story=/opinion/feature/2010/04/15/assassinations_terrorists
and
http://opinionator.blogs.nytimes.com/2010/04/13/title-2/?hp
April 16th, 2010 | 4:01 pm
First, yeah, I know the Luther quote was over the top, but I was just having fun. Second, I would agree that what Joe suggests regarding the constitutionality and legality (and Steve concurs) is probably correct.
HOWEVER … how many Dred Scott/Plessy v. Ferguson decisions do the courts have to hand down before we quit treating constitutionality and legality as equivalent to morally right?
April 16th, 2010 | 4:20 pm
Rev. Mike HOWEVER … how many Dred Scott/Plessy v. Ferguson decisions do the courts have to hand down before we quit treating constitutionality and legality as equivalent to morally right?
Actually, I thought the legality question was the only thing that was in dispute. Morally, the U.S. government has an obligation to protect its citizens against belligerents like Al-Awlaki. If it wasn’t for his citizenship status, he’d be just another terrorist enemy combatant.
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