The recent leak to NBC News of a Justice Department “white paper,” on the authority to conduct “lethal operations” against U.S. citizens abroad if they are enemy combatants in our war against al-Qa’ida, has touched off another round of controversy about the lawfulness of our tactics. Although the memo does not mention the use of drones as a particular means of killing, it is widely understood that drones are the Obama administration’s preferred method of “lethal operation,” and the killing in 2011 of Anwar al-Awlaki by a drone strike set off a great deal of commentary on whether the president of the United States can “target” American citizens for death by simply declaring them enemies of the state.
This white paper is the administration’s attempt to deal with the questions raised by our current wartime practices. It is presumably based on substantially similar legal memoranda prepared by the Office of Legal Counsel in the Justice Department; one should not expect such memoranda, if they surface, to add much.
One might have hoped, however, for a legal analysis more competent than the one represented in this white paper. Its anonymous authors make two large errors.
First, the tight focus on whether American citizens can ever be the target of a “lethal operation” is under-inclusive. Much of the white paper is taken up with discussions of whether citizens are protected by the principles of due process when the government contemplates killing them as enemy combatants in wartime. But as a glance at the Constitution reveals, the due process clause of the Fifth Amendment (like the one later added in the Fourteenth) does not protect “citizens”; it protects “any person” without regard to whether he or she is a citizen or not. Thus, if the due process clause bears at all on the use of lethal force in wartime, it bears on the use of such force against anyone, not just citizens.
Part of the problem here is the authors’ reliance on the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld, a case involving an enemy combatant who was detained in the U.S. rather than Guantanamo after it was discovered that he was an American citizen. Hamdi borrowed a “balancing” test for due process from a 1976 case, Mathews v. Eldridge, involving the withdrawal of federal disability benefits, and the white paper’s authors use the same test.
But in Mathews it did not matter whether the person challenging a deprivation was a citizen or not, and the Hamdi ruling’s repeated mantra that a citizen’s rights were at stake was entirely misplaced. What should have mattered was not his citizenship but whether he was being held by law enforcement authorities for trial before a civilian court, or being detained instead by military authorities as either a prisoner of war or an unlawful enemy combatant subject to military justice. (In order to obviate the stupidity forced on it by this ruling, the government later released Hamdi to Saudi Arabia on condition that he never return to the U.S.)
The point is that due process, because the clause addresses the rights of persons, is the same for citizens and aliens, if they are rightfully subject to our authority to bring the law to bear on them—and none of the white paper’s cited precedents older than the misguided Hamdi ruling suggests otherwise.
That brings us to the second problem with the paper: It is overly solicitous. The authors seem entirely innocent of the fact that where we are not contemplating the use of the law’s authority over persons (as we do in our criminal justice, immigration, or administrative-law systems), but are instead contemplating the use of military force against enemies in a war, the question whether we are affording those persons “due process” is an absurdity. The question, properly speaking, does not even arise.
Remember, if we are competent interpreters of the due process clause, it does not matter whether the person we have in view is a citizen or alien. Does anyone think that it matters whether a foreign enemy combatant receives some “balance” of due process before we kill him from the sky in a just war? If not, then it does not matter one iota more in the case of an American citizen who takes up arms against his country. Nor does it matter, as the white paper’s authors seem to think, whether our lethal operation constitutes a “seizure” under the Fourth Amendment’s clause on “unreasonable searches and seizures.” The Fourth Amendment does not accord more rights to citizens than to aliens, and if it is completely inapplicable to the employment of war powers against aliens, then the same can be said regarding citizens.
Just this side of absurdity is the white paper’s consideration of whether the government is violating a federal statute forbidding one U.S. citizen from murdering another U.S. citizen outside the country. Unlike its constitutional reasoning, here at least the paper takes up a legal provision that deals especially with citizens. But it is plainly misguided to think this statute is applicable to the prosecution of a war by our military commanders, for the killing of the enemy in combat (as opposed to when an enemy is hors de combat) is by definition not murder—a point the paper labors too hard to show.
What the paper concludes when the dust of its irrelevancies settles is that an American citizen can be targeted for killing by our military if these conditions are met:
(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force
—those four principles being elsewhere identified in the paper as “necessity, distinction, proportionality, and humanity (the avoidance of unnecessary suffering).”
But with the exception of the felt need that a “high-level official” be involved (another irrelevancy driven by the mistaken focus on citizenship), everything said here ought to guide our drone strikes against anyone in the ranks of the enemy, whatever their nationality. If they are not threats, we may not kill them; if they are, we may. If capture is feasible, we should capture them; if not, not. And we should always strive—whether with bullet, or bomb, or Hellfire missile from a Predator drone—to wage war with discrimination, proportionality, and humanity, using no more force than is necessary.
Everything else in this white paper, like much else being said in the ongoing controversy over “targeting U.S. citizens with drones,” is a distraction, a legal error, and a moral confusion.
Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.
Comments:
The same for other countries whom we wouldn't be inclined to trust, China or Iran for example.
Then: what argument or sanction could be oppose to such a state? For they'll just be following the example we set!
http://gizmodo.com/5983175/report-ex+cop-christopher-dorner-is-now-a-target-for-drones
If hating America were an act that posed an imminent threat of violent attack against the United States, every Leftist professor in the United States would be a legitimate drone target. I know; some of you out there might be pleased with that result.
As seemingly applied to al-Awlaki, this standard of 'imminence' seems rather novel as a matter of constitutional law. Without judicial oversight, it is, at least, highly subject to abuse.
If al-Awlaki was personally involved in plotting attacks, and had begun to take substantial steps to carry them out, and he was otherwise hard to get to, perhaps the imminence standard was satisfied. In the news stories I have read, I do not recall any evidence that was adduced [perhaps it was alluded to] as a justification for killing him other than that he spoke against America.
Do you really believe that if a nation, say Iran, develops drone technology to the extent that they see it as a plausible means to achieve their national objectives, our refusal to employ this technology is going to dissuade them? Do you believe, for example, that if the U.S. had not used nuclear weapons to end the war with Japan in 1945, the Iranians would stop enriching uranium towards weapons-grade capability?
You have made a far more convincing case for the legality of drone strikes against certain American citizens than the Justice Department was capable of doing. It is succinct, legally and Constitutionally convincing, free of jargon, and easily understandable by the layman. Have you ever considered writing white papers for the administration?
P. Kenny:
Some other countries already have their drones in operation. When it comes to silencing annoying critics in former Soviet republics, however, I'm sure the Russian intelligence agencies would prefer a discreet stab with a poison-laden umbrella tip in a train station. It attracts far less attention than a hellfire missile, and its source is harder to trace.
Yan:
If a "leftist professor" (or a right-wing militia leader, for that matter) advocated assasination of public officials, he could be arrested and tried for treason anytime. Simply hating America or the government, or making ideological criticisms of it, would not qualify.
But al-Awlaki went far beyond that. He was a key inspirational member of al-Qaeda who had intimate contacts with several of the 9/11 hijackers, Major Hasan of Fort Hood infamy, and Umar Farouk Abdulmutallab, the Christmas Day airline bomber. There is evidence that he participated in the planning of the latter attack. Further attacks were definitely in the works.
Your opinion seems to be at variance with our constitutional case law. Brandenburg v. Ohio struck down a law which was used to arrest a KKK member for advocating terrorism. In relevant part, the statute proscribed "advocat[ing] ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and "voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."
Al-Awlaki's behavior fits this pattern. Such writing and speaking is not directed to producing or inciting IMMINENT lawless action. It is directed to producing lawless action, but not at any particular moment. You cannot kill someone because you are afraid that their speech may give rise to lawless action at some indefinite time in the future.
To say that a Leftist professor or typical Montanan could be arrested for treason merely for 'advocating' assassination of elected officials is just incorrect. They can advocate castration, drawing and quartering too if that's what they believe is right.
As to the planning of the attacks: who determined that this evidence existed? Who determined that the threat was sufficiently imminent to justify the killing? Who determined that it was sufficiently reliable to justify the killing?
Separation of powers is our greatest bulwark against tyranny. The executive is saying in this white paper that its policy is to make these decisions without anyone else having to inquire how they are made, or evaluating the sufficiency or reliability of its evidence, or evaluating the imminence of the threat.
Arrest warrants cannot issue from a judge except upon a showing of probable cause. They are saying they do not even have to demonstrate probable cause to a judge before assassinating an American citizen.
We want that determination to be an informed one, a deliberate one, and to meet standards of due process.
I do not think that the requirement that the determination simply be made by a 'high-level official' goes far enough. For the first time in my life, I find myself in agreement with Sen. Diane Feinstein that judicial oversight of these determinations is a wise and prudent idea.
The alternative is to let the executive branch make these determinations all by itself. How that would differ from tyranny, I would like to know.
We have a problem because our enemies are not wearing uniforms. They may take strategic advantage of that fact to make their identification more difficult. Because it is more difficult, are we justified in wartime to lower the standard of identification? This will foreseeably result in more, not fewer, innocent people being killed. Due process exists for the primary purpose of preventing that from happening.
Mr. Franck, stick to thy last.