By Kenneth Anderson
Due to the press of a deadline for something else, I am not able to comment as fully as this all deserves, but I wanted to flag this morning’s
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editorial in The Washington Post, essentially defending and, in some ways, extending the Obama administration’s position on targeted killing, whether using drones or human teams, including American citizens under certain circumstances.
[DOS Legal Adviser Harold] Koh correctly asserted that the 2001 Authorization for the Use of Military Force, international law and the country’s inherent right to defend itself put it on solid legal footing for such attacks, including those outside traditional battlefields ... In his [March ASIL 2010] speech, Mr. Koh did not address whether U.S. citizens could be the targets of these strikes.
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The American Civil Liberties Union took up Mr. [Anwar] Aulaqi’s cause last week, arguing that it would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.
U.S. citizens who take up arms against the country are enemy combatants and are indistinguishable on the battlefield from other belligerents. The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be — and we trust would be — dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.
But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens.
I agree with the fundamentals of the editorial; so does Ben Wittes, commenting at the new — and I suspect soon to be indispensable — national security blog, Lawfare. Not everyone does, to be sure; over at Opinio Juris, my co-blogger Kevin Jon Heller argues that, at least outside of a recognized war zone, an American is entitled to adversarial judicial process, and adds:
We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process. So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?
There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime. If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding.
It’s an interesting scenario — CCR Michael Ratner representing a gone-missing-in-Yemen Aulaqi, getting a chance to review the government’s secret evidence, being able to review the secret methods of secret evidence collection in a secret proceeding, not only the contents of which presumably need to be kept secret but the very fact of the proceeding as well? I wonder what the internal reaction to this scenario would be inside Koh’s shop at the State Department, let alone at DOJ, DOD, NSC, DNI, or CIA. But now a couple of final comments which go to issues that haven’t been so much discussed.
First, if one reads the ACLU-CCR filing as well as the Washington Post opinion piece by the two advocacy groups which has also been discussed at Lawfare and Opinio Juris, it is hard not to notice that the underlying argument is only secondarily about an American citizen being targeted — and primarily about the idea that an armed conflict in a legal sense is necessarily geographically bounded, limited to particular battlefields and acknowledged “theatres of conflict.”
On the citizenship point, one understands the problem — the progressive left of which these groups are a part tend to put no weight on citizenship much of the time, treating it as a morally accidental and therefore morally suspect category — except when it comes time when it can be invoked to offer protection. (One might regard this as a theory of citizenship premised on the view that it promises only goodies, and is merely a mechanism for internalizing benefits and externalizing costs. As with most situations of continuous moral hazard, such a conception can’t really last.) At the end of the day, the advocacy groups see the citizenship issue merely as a strategic argument for protecting a group (Americans) that has no actual special moral claim. And so, whatever the argument over targeted killing are at any given moment to advance the cause of prohibiting them, the advocacy work won’t be done until it also addresses the presumptive human rights of non-Americans equally. Citizenship is merely strategic.
Second, going to the geographic definition of war as a legal concept. This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law. And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime). I cannot say that these claims — although heroically urged by the advocacy groups and their academic allies — have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it. Certainly the State Department, under Harold Koh, no less, does not even entertain it. And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation. (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)
Rather, the customary view of the US — and the traditional view of war-fighting states — has always been that the fight can lawfully go wherever the participants go. It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself. The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are. The reason for this traditional rule is obvious — if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven. Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.
The ACLU-CCR view acknowledges (at this point in its advocacy campaign, anyway) that a US citizen might be lawfully targeted — not to put too fine a point on it, and a note, per Orin’s earlier post, to judicial clerks — without the permission of Proconsul Kennedy, provided that he be on an “actual” battlefield as the ACLU legally defines it in its own way. That being the ACLU’s view for the nonce, then the geographical distinction is crucial as a matter of law. Within it, the US citizen can be treated as a combatant like any other; outside of it, then in the ACLU and CCR’s view, constitutional rights follow the citizen.
It is important to understand, then, that the ACLU and CCR’s advocacy position is not limited at all to US citizens — it is to impede targeted killing by requiring, among other things, the permission of a Federal judge at a minimum, including for non-US citizens. Since it seems, as a matter of political advocacy at least today, a bit of a stretch even for the ACLU or CCR to try and argue that an American shooting at US soldiers in Afghanistan is owed a judicial hearing, the crucial premise is to separate out those “active” war zones as a matter of law from places where constitutional due process meted out by a federal judge obtains.
The citizenship issue is best understood, then, as a stalking horse for a larger advocacy strategy in which, in the case of US citizens, constitutional rights follow US citizens even beyond territorial borders — a questionable proposition, in my view, if that is supposed to mean “all” or even “all important” ones. (There are many reasons why territory matters in the existence of constitutional rights — the actual exercise of actual police powers over the national territory, versus Yemen or Somalia, for one thing; it is partly, but not just a formal concept about sovereign territory. The Post editorial dealt with that correctly, in my view.) And in the case of non-citizens, outside of what the ACLU defines as the legal armed conflict zone, full human rights law applies on the ACLU-CCR, to render the targeted killing an extrajudicial execution; likewise, in my view, a questionable proposition. But in the discussion of the current ACLU lawsuit, I think the fundamental premise, and the most dubious one as a matter of law — geographical limits on the legal state of armed conflict — has been somewhat passed over as people have argued instead about citizenship.
Third observation — why the assumption that in everything, including crucial issues of national security abroad, there is always a role for the Federal judiciary? The Washington Post editorial emphasized, correctly, in my view that indeed a US citizen was deserving of greater scrutiny in deciding whether or not to target; I deliberately use “scrutiny” as a non-legal term rather than “due process.” The Post was seemingly careful not to suggest that this scrutiny should be that of a judicial process or Federal judge. Rather, the Post quite correctly, to my mind, emphasized that this consideration should be built into the intelligence oversight process — some kind of mechanism to ensure that the fact of citizenship has been acknowledged and a heightened evaluation made.
The WP says that the bi-partisan intelligence committees should be informed — a matter with which I could not agree more, on this as well as other matters involving Congressional oversight of the intelligence community. But there is a special salience here. Because in these targeted killings and other intelligence actions, officials tasked to carry out these missions need to have assurance that they will not be scapegoated afterwards. They do not have it now. A crucial political mechanism is to ensure that the intelligence committees have been fully and completely informed — so that there can be no later deniability as to what Congressional leaders were informed in secret.
I would write that as an amendment — perhaps; I could also be persuaded putting anything in writing is merely an invitation to judicial intervention — into USC 50. This would be partly to make clear both that the process is vested in the political branches as a matter of national security, but that in the case of Americans abroad and possibility the subject of forcible actions by the actors in the “intelligence community,” the President shall, in the lawful exercise of his discretion, take into account that the person is American. But it would also be to say explicitly that nothing in the exercise of that discretion confers any substantive rights on any individual and that the judiciary has no power to review such exercise of Presidential discretion.
As various people have pointed out, the current ACLU lawsuit is not likely to go anywhere. From the advocacy point of view, that is not really the point. It is instead to keep create as much legal uncertainty as possible by raising the possibility that at some point down the road, perhaps some Federal judge will decide to entertain these possibilities, and hold some CIA official liable for something done years before — does any, these days, think that we are in a period of settled institutional views on liability? If anyone thinks that even a small amount of legal uncertainty for individual officers involved does not have consequences, they should think again. Leveraged legal uncertainty affects behavior.
Moreover, the US government, under any administration, is perennially unable to see the larger advocacy campaign — this as well as other ones. They are textbook examples, whether one agrees with the cause or not, of The Logic of Collective Action; they look to the ten year framework, and they understand something that seems to elude too many law and economics scholars, viz., the framing power of legitimacy. Hence the current formulation of the ACLU lawsuit — execution without trial of an American citizen abroad by his government. One might think that “execution without trial” tendentiously presumes the conclusion, but it has been faithfully picked up and repeated by numerous journalists and commenters as though it were the obvious starting point rather than a tendentious conclusion.
When I talk with government lawyers about this public advocacy issue, however, their response tends to be ... but Harold Koh already addressed this in his speech! It’s been settled, already! But if you are engaged in an advocacy campaign for the long run, Koh merely gave momentarily the wrong answer, and the task is to endlessly reframe until everyone has forgotten what he said and what’s left is, “execution without trial.”
Finally, the long march of advocacy groups through the institutions puts a greater importance on that least-impressive branch of government, the US Congress. It needs to get involved — to take up its responsibilities as one of the political branches to set the most basic terms of national security.
But for a sharply contrary view to all of this — a view that, when contrasted with this or with Harold Koh’s views, shows just how much these basic conceptions of national security are today ships passing in the night — read Kevin’s (several) posts at OJ as well as Ben’s comments at Lawfare to which Kevin is partly offering a reply.