Aim & Ignite

In the course of defending President Obama’s counterterrorism framework — which I believe does make the best of a bad situation in the case of detention, and makes valuable, nontrivial progress over his predecessor by complying with the rule of law when pursuing disturbing but necessary expansions to the FISA program — I’ve missed the point that his expansion of the use of Predator drones may not be entirely on the level. While I still do think Professor Feldman’s point about the civilian (and therefore noncombatant) status of operators probably risks sacrificing too much to form, the larger point, that this program should be subject to oversight, ought not be ignored.

As a background, a brief overview of the law of targeted killing. Executive Order 12,333, at § 2.11, forbids assassination. This prohibition mirrors the U.N. Charter’s rule against the same. However, the U.N. Charter, and international law, express with one voice a nation’s right to self defense. Accordingly, U.S. policy has been that the targeted removal of enemy operatives on the battlefield of a declared war is not “assassination” but “targeted killing.” Targeted killing as an incident to self-defense against an actual, imminent, or continuing threat is therefore a “policy rather than a legal decision,” and its legality can be fairly said to turn upon the status of the target. Elimination of a combatant is fair play, and no crime.  International norms concur (cf. Aharon Barak, former President of the Israeli Supreme Court), but require that the target engage in something equaling or exceeding “unlawful support” of combatants, by, e.g., gathering intelligence or arming warriors, before targeted killing would be seen as lawful.

We construe the September 18, 2001 Authorization of Military Force (AUMF) as congressional authorization approximating a declaration of war, and Afghanistan, say, as the closest thing to a battlefield we have. Targeted killing is therefore appropriate in at least some circumstances abroad, but some limits attach.

American best practices — a collection of government memos that I only have in my Counterterrorism casebook, and can’t seem to find anywhere else — require that killing be necessary to avoid an imminent harm, and proportional to the need. It must also utterly avoid harming a U.S. person. The U.S. Constitution, as a compact between her citizens and her government, does not end at our borders, but protects our citizens from the unlawful deprivation of life, liberty, or property even abroad. See Reid v. Covert, 354 U.S. 1 (1957) (recognizing some limits). The Al-Harithi assassination was not therefore not legitimate, for several reasons; but sniping a car carrying an al Qaeda operative, with no alternative, might be, even if it kills civilians.

We can dispute this framework, but it’s the way American operatives view the law, and it does preserve an important and even necessary tool in the War on Terror. We need not hobble ourselves, or reason away our technological advantages — especially when we consider the alternative of putting American lives in danger — but we ought to deploy them with a modicum of responsibility.

Query whether a non-militant casualty rate of 30% meets that threshold — but the assassination of an American citizen, even as an incident to a military objective, never will.

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27 comments

  1. Good analysis.

  2. I appreciate that you’ve taken the time to delve into this, you get full marks from me, at least, for not ignoring the issue. It does bring me to this question, though: based on your readings on this subject, what’s your take on Anwar Awlaki?

  3. Glad to help! And you were right, John, it’s worth the investigation. As for Anwar Awlaki, though, I’m still not sure just what you mean. As far as I see, he’s still at large, right? Are you asking whether we should be able to take him out, since he’s a dangerous dude, but also a U.S. citizen?

    1. I assumed that was John’s question. My opinion is that there has to be a mechanism for revoking someone’s citizenship…and maybe we should start with Awlaki.

    2. He’s “at large,” yep. Just to be clear, though, if he’s found he can be KILLED, not just arrested. And he’s an American citizen.

      Mike – he’s an American citizen, and he hasn’t been convicted of anything yet. So, let’s strip his citizenship without conviction of a crime?

      “But he did it!” But he’s not convicted yet, which in this country means the State doesn’t actually know that for certain yet. If you were accused of a crime, say a burglary, and we went ahead and punished you for it before you were tried and convicted for it, I’m pretty sure you’d raise hell about it being such a big fan of the Constitution that you are. And we’re talking about a man’s LIFE here. Just how much wiggle room on Constitutional guarantees do we want when it comes to state-sanctioned MURDER?

      I’m not a fan of this guy or what he’s accused of saying and doing, but isn’t that EXACTLY when convictions matter?

      1. I think a trial could be held without him to strip his citizenship. What comes after that is up to the military to decide.

        1. Well, if the law is on the books, held to be Constitutional, and he’s tried and convicted under that law, and the appropriate punishment is removal of his rights, then fine.

          If… if… if… in the meantime, he’s slated to be killed if found. Again, and I hate to belabor such a petty point, as a U.S. citizen and without trial. But hey, he’s a bad guy, which I’m sure of because I can read all about it in the media, which has both sides of the story because he totally doesn’t mind scheduling an interview when the CIA is out to kill him.

        2. I’m pretty sure that trials in absentia are not generally considered ‘due process of law’ in the sense of the Fifth Amendment.

        3. Haha that’s correct. There are no Star Chambers here. Or there shouldn’t be.

    1. My position is that a public trial should be held in these cases. If the law supports a loss of citizenship, then do so. As for his fate afterwards, it’s a legitimate discussion as to whether or not his actions justify assasination.

      1. But that’s the point. The death warrant was issued without trial, and, 8 months later, the only statute that anyone can find to try him on has a maximum 15 year sentence – without any revokation of rights. And no, its not a legitimate debate whether his actions justify assassination extra-judicially. If that were the cas ethen all the student protesters o fth eVietnam war in the 1960’s deserved to be killed, as most of them were advocating overthrow of th egovernment, often violently. Ditto the Aryan Nation, or “Rev.” Jones and his Koran burners.

        Many, may of your fellow citizens believe the government of the U.S., and government of the U.S. is their enemy for one reason or another. They advocate for its destruction, sometimes through armed action,all the time. We as a society generally dismiss them as crackpots. Why treat this fellow citizen differently simple because he Islamic, and not a WASP? or did I just answer my own question.

        1. My understanding is that he is on the target list because he is considered an associate of Al-Qaeda, not because of his sermons alone.

          1. Fine, but that determination has been made about an American citizen extra-judicially with no evidence presented publicly (or privately) for that matter. And the attmept by his father to sue the government (!) for that decision is supposedly about to be turned away by the DOJ under the broad application of the State Secrets Doctrine that Mr. Obama has adopted from Mr. Bush. Those are not the actions of a Constitutional Democracy – they ar ethe actions of an authoritarian dictatorship. Or do you believe that free association negates free speech, and both are negated because of the associates?

            1. What I believe is that the PUBLIC record shows he associated with not just some of the 9/11 hijackers but also other known terrorists. The intelligence community likely has other info that it isn’t willing to share with the public and I’m ok with that. There is Congressional oversight of the intelligence community and that is how a representative democracy works.

              Once the determination is made of his associations with Al Qaeda (and the evidence on Wikipedia alone is pretty damning) then he becomes a military problem.

              1. SO taking your logic one step further – since I happen to be a fairly regular critic of the current regime, excatly whom do I have to associate with and how firey do my writings have to be before I become a “military problem?” Where do you draw the line when it comes to your fellow Americans?

            2. Congress doesn’t have the right to circumvent the Constitution, either. The guy is as much a citizen as anyone in the United States, and he is literally facing the death penalty (note that this isn’t hypothetical, he already survived one missile attack) without so much as a charge being filed against him.

              And no, his association with al Qaeda is not actually enough to kill him. Because then we get to play that exciting game of “how much of an association do you have to have before we get to kill you without trial for it?” What you do is charge him with an actual crime for associating with al Qaeda, assuming for the moment that that is in and of itself a crime, and put him on trial.

              I take it you’re not an advocate, in any form, of American Exceptionalism, right?

            3. It’s funny. I remember ages ago when it was still considered somewhat controversial that the CIA would try to assassinate, say, Fidel Castro with exploding cigars.

              Yet these days, it’s apparently widely accepted that the US Air Force can shoot cruise missiles after American citizens.

              And some people say 9/11 didn’t really change anything!

              1. My opinion is that really nothing has changed in the US assasination program since WWII other than the fact that the public knows more about it. Believe me, we’ve been killing bad guys in secret for a long time.

                1. And how many of them were American citizens?

                  1. Oh I suspect more than a few.

                  2. Well, is your suspicions are correct then those events were f&@*ed up as well, and just because some past administration went off the reservation doesn’t mean we should shrug our shoulders at it now.

                    Honestly, law-and-order types who don’t mind breaking the law in the name of “justice” look like a gigantic cognitive dissonance for me. They must get terrible migraines.

  4. And apparently my HTML skills are off today – that’s some link to Glenn’s page!

  5. Speaking of Star Chambers, the British Home Secretary has had precisely such authority to revoke naturalised citizenships since the new Immigration Act of 2002. (Dual citizens only, of course – everyone has the right to a citizenship.)

    I’m not sure if that authority has ever been used, but even then there has been considerable criticism. I think this is the crucial sentence of that comment:

    “The implication is that naturalised citizens have a lesser status than those born to British parents.”

    This problem of essentially establishing two different classes of citizen would obviously be the same in the US, and while I am on record here of criticising frivolous references to ‘the Founding Fathers’, I’m pretty sure that’s not what ‘they’ intended.

    1. http://www.theonion.com/articles/us-offers-platinumplus-preferred-citizenship,889/

      Been thinking of this for a couple of days now; of course, the idea is considered so absurd as to be worthy only of comedy back in those innocent days.

  6. […] “forbidding” assassinations — though to be sure, most authorities on the subject forcefully disapprove of the assassination of U.S. citizens. But, a string of Supreme Court decisions takes the legs out of Greenwald’s larger argument, […]

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