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Tuesday, November 15, 2011

Targeting Americans: Does Citizenship Matter?

When the press reported that Anwar al-Awlaki had been killed in a drone strike in Yemen, the news was greeted with shock that the American-born cleric and self-described member of al-Qaeda had been killed by his own government.  Some called it an extra-judicial assassination.  The controversy only intensified when it was reported that his son (also a citizen) was killed in a subsequent attack, although it is unclear whether his son was a direct target or collateral damage.

Much of the legal controversy surrounded a still-secret Office of Legal Counsel (OLC) memo that concluded that his killing would be legal under both international and domestic law, at least assuming that he could not be captured.  (I'll have more to say about the duty to capture in a future post, following up on an excellent post by my colleague Mike Dorf.)  Although the memo has not been officially released and any discussion of its contents are pure speculation, I do want to express some skepticism that Awlaki’s status as an American citizen matters to the analysis.  In my view, it does not – and should not matter at all.

The law of war (aka the Law of Armed Conflict) creates an essential binary opposition between two categories: combatants who are subject to the risk of killing and civilians who cannot be deliberately attacked.  There are only a few qualifications to this general scheme.  Civilians who are “directly participating in hostilities” can be killed as well.  Conversely, soldiers who are hors de combat (literally meaning outside the scope of battle) because they are injured, or have surrendered, must be treated like civilians and cannot be deliberately killed.  But the central point remains: in war, killing an enemy soldier is not an act that stands in need of legal justification.  It’s completely legal.


Given this fact, it is unclear why Awlaki’s American passport has anything to do with the law governing his killing.  Of course, one can disagree about whether Awlaki was “directly participating in hostilities” when he was killed.  To that end, the U.S. government position on his status within al-Qaeda is pretty clear.  According to U.S. officials, Awlaki long ago surpassed his role as a mere propagandist who limited his role within al-Qaeda to giving fiery sermons and speeches designed to promote al-Qaeda’s anti-American agenda and justify its jihadist attacks.  Rather, Awlaki had allegedly become an “operational” figure within al-Qaeda who was involved in the planning and support of specific missions, including the failed 2009 Christmas Day airliner attack by the so-called underwear bomber. 

Again, one might dispute the factual allegations made by the U.S. government, or one might quibble with the U.S. government’s interpretation of the legal phrase “directly participating in hostilities.”  Either of those claims might mean that the drone strike against Awlaki was illegal.  But for these purposes, his being American means nothing at all.

After all, the German Army in World War II included dual-nations who no-doubt carried American citizenship.  Consider, for example, a German couple living in the United States when their son is born (with U.S. citizenship).  The family returns to Germany after the outbreak of war and the son joins the Germany Army to fight for his country.  However, because he is wearing a German Army uniform, he is subject to being killed along with his fellow combatants, regardless of what his passport might say.  The Civil War is an even more extreme example.  Since the Union did not recognize the legitimacy of the South’s declaration of secession, every Confederate soldier was prima facie a U.S. citizen.

So why all the fuss about citizenship?  Besides the obvious answer that his citizenship is invoked as a political argument against drone strikes (as opposed to a legal argument), there is also the issue of whether domestic U.S. law prevents the Executive Branch (whether the CIA or the DoD) from killing Awlaki or any other U.S. citizen. In particular, the question is whether the U.S. constitution, quite apart from international law, has something to say about the matter.  This would be a constitutional “overlay” that is in addition to whatever legal requirements exist under the Law of Armed Conflict.

First, there is the issue of the hypothetical German soldier I mentioned above.  If the constitutional protection applies to Awlaki, then arguably it applied to the German-American soldiers too.  But that doesn’t seem consistent with U.S. practice during the Second World War.

But putting that historical example aside, the second question is what the content of the constitutional protection would be.  Under the U.S. Constitution, all persons have the right to due process.  Under this theory, Awlaki should have been captured and placed on trial so that his punishment could have been decided by a court, rather than by the President or the CIA.  Certainly, this is the background assumption that animates the law enforcement paradigm during peacetime situations.

Support for this view can be drawn from the U.S. Supreme Court’s 2004 Hamdi decision, in which Justice O’Connor wrote for a four-justice plurality that Hamdi, a U.S. citizen captured in Afghanistan, had a constitutional right to contest his status as an enemy combatant before a neutral decision-maker.  In response, the Bush Administration created the Combatant Status Review Tribunals (CSRTs) to give detainees precisely this opportunity.

However, applying the Hamdi precedent to Awlaki’s killing has multiple problems.  First, Hamdi was about detention, not about targeting.  Second, the constitutional right to contest one’s detention was informed by, among other things, what the LOAC says about detention.  In this case, the LOAC says that Awlaki can be targeted if he directly participated in hostilities.  It is therefore unclear what work, if any, his citizenship is doing in the argument.  Finally, in Boumediene, the Supreme Court extended the Hamdi right to contest one’s detention to non-citizens, thus demonstrating that citizenship does not matter even in detention cases.

A final note about the politics of this argument.  Obama’s critics on the Left who are unhappy with the drone strikes have used Awlaki’s status as an American to whip up popular outrage over his killing.  But some progressives are increasingly worried about emphasizing Awlaki’s citizenship, because doing so assumes that American lives are somehow worth more than the lives of foreigners.  That’s the implication when you start emphasizing citizenship.

Some progressives don’t like this implication at all.  It runs counter to their belief that we should be equally concerned with the civilians that are being killed in Iraq, Afghanistan, Pakistan, and Yemen – or wherever we are currently fighting the War on Terror.  In this sense, then, both critics and supporters of the drone strikes ought to recognize that citizenship doesn’t matter at all.

3 comments:

Toby's Random Musings said...

Jens, you don't need a hypothetical German-American - there is the odd case of Martin Monti (http://en.wikipedia.org/wiki/Martin_James_Monti). I agree with your analysis here:

http://slightly-random-musings.blogspot.com/2011/10/usg-opinion-on-killing-anwar-al-awlaki.html

http://slightly-random-musings.blogspot.com/2011/10/usg-opinion-on-killing-anwar-al-awlaki_15.html

http://slightly-random-musings.blogspot.com/2011/10/does-nationality-matter-in-drone.html

Kind regards,

Toby

Jens David Ohlin said...

Toby, thanks for bringing all of this to my attention, especially Monti's case. I had heard of his case long ago, but had forgotten about it when I started writing about TKs. Also, thank you for posting the links to your blog posts on Awlaki. I will be appearing on a panel at UPenn this Wednesday where I will discuss these issues.

Toby's Random Musings said...

Jens, hi

Thanks for commenting so promptly. I should re-emphasize that I'm not commenting on US domestic law (and I'm not qualified to do so), but from a LOAC perspective - which should be the controlling lex specialis - citizenship of those with combatant status under either IAC or NIAC shouldn't be an issue.

None of this excuses the Administration's apparent refusal to release their legal advice, of course.

Look forward to hearing how things go at Penn.

Kind regards,

Toby