A War Like No Other (36 page)

It is the responsibility of the executive to direct whatever war may be declared. In discharging this responsibility, the executive has the authority to target enemy combatants. This authority should be seen as an exception to the basic requirement of due process—trial in a court of law—and should be construed accordingly. This means, above all, that the executive may not target civilians, provided we understand that appearances should not be confused with reality. An individual may present himself as a civilian—as is usually the case with terrorists—but may be treated as an enemy combatant if it is determined that he is, in fact, the leader of a terrorist organization with which the United States is at war, or someone directly engaged in violent activity on behalf of such an organization, or quite possibly someone who provides significant support for the organization’s violent activities. Given the stakes, this determination should be made with a high degree of certainty.

Even if it is determined that the individual to be targeted falls into one of these categories and thus may be treated as an enemy combatant, the decision of the executive to target this individual should be constrained by two further rules that govern combat
and that, in the counterterrorism context, might properly be seen as rooted in due process. One requires the executive to capture the alleged terrorist if it can. The other requires the government to desist from the attack if it would entail the killing or harming of civilians and if this harm would be disproportionate to the military gains to be achieved by the attack. In either situation, the lethal attack cannot be justified as a matter of military necessity or of the executive’s war-making power. As a result, the ordinary processes of the law must be followed.

Although these various constraints on the executive in the exercise of its war-making power have counterparts in the laws of war or international human rights law, I view them as part of constitutional due process. My claim is not that the Due Process Clause incorporates these bodies of law but that the Due Process Clause and the values it seeks to protect—trial in a court of law—contemplate the same checks on the U.S. government in the pursuit of terrorists. In that respect, the rules governing the targeting of terrorists can be seen as analogous to the least-restrictive-alternative test that has long governed the First Amendment and its protection of free speech.

Despite the wording of the First Amendment—“Congress shall make no law . . . abridging the freedom of speech”—the Supreme Court has allowed statutes or executive action that furthers government objectives, such as guarding national security, maintaining public order, or protecting children from explicit sexual images. The Court has required, however, that the purpose of such a statute or executive action be compelling and, furthermore, that the means chosen to pursue that end be the least restrictive alternative or, put differently, that the means be narrowly tailored to achieve the government’s objective.
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In this way, the Court has required the government to minimize the sacrifice of free speech values. Similarly, though the government may be allowed, even under the Due Process Clause, to engage
in targeted killings of suspected terrorists as a legitimate exercise of its war-making power, it must use that power sparingly and avoid the sacrifice of the central due process value—trial in a court of law—before taking the life of some individual.

In a speech at Northwestern Law School on March 5, 2012, five months after the killing of Anwar al-Aulaqi, Attorney General Eric Holder endorsed a number of principles usually associated with traditional warfare.
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As he put it, the government can target an individual only when “capture is not feasible.” Invoking the rule of proportionality, he said that the harm to civilians—so-called collateral damage—must not be “excessive in relation to the anticipated military advantage.” He also acknowledged, under the rubric of honoring “the principle of distinction,” that civilians cannot be lawfully targeted. According to Holder, only “combatants, civilians directly participating in hostilities, and military objectives” can be intentionally targeted. Holder further acknowledged that the person targeted must have been deemed to pose an “imminent threat of violent attack against the United States.” Such an imminence requirement may be implicit in the principle mandating “capture if you can” and, quite possibly, a reading of Article 51 of the United Nations Charter that permits preemptive but not preventive strikes in self-defense.

In a speech delivered at the National Defense University on May 23, 2013—more than a year after Holder’s speech—President Obama expressed uneasiness with the proportionality rule and seemed unprepared to accept any killing of civilians as collateral damage, whether or not it is proportional.
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This strikes me as a wise amendment of the policy Holder announced, if that is what was intended. The collateral damage acceptable in traditional warfare may be unacceptable when a suspected terrorist, such as Anwar al-Aulaqi, is targeted. In that situation, there will be an inescapable element of doubt as to the conditions allowing the United States to take such action. Even if there is no doubt
as to whether the target is a leader of a terrorist organization, there may be doubt as to whether capture is feasible, or whether the lethal attack might be deferred until a later date when the killing of civilians would be avoided, or whether the terrorist organization is a co-belligerent of al-Qaeda, or whether the nation in which the suspected terrorist is located has relinquished its claim to sovereignty. These uncertainties seem inevitable and are significantly greater than those associated with the killings that invariably take place in a combat zone or an active theater of armed conflict. As a consequence, the advantage to be gained by killing a suspected terrorist is, as a matter of morality and legality, too slender to shoulder the ensured killing of civilians, under the theory that such killings would be nothing more than collateral damage.

The global nature of the war against a terrorist organization such as al-Qaeda may present additional reasons for departing from the rule of traditional warfare that would allow, subject to the proportionality requirement, the killing (though not the targeting) of civilians. It is one thing to apply the traditional rule in a combat zone or hot battlefield and another to apply it, as the global War on Terror invites, to any community in the world in which a suspected terrorist might reside.
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The combat zone is by necessity geographically limited, and the people who live in it are abundantly conscious of the dangers they face. The War on Terror has no geographic bounds; it embraces every community in the world in which a leader or an operative of al-Qaeda can be found. Unleashing a lethal power so vast has profound and disturbing implications for those to be targeted, but allowing civilians to be killed on the theory that they are collateral damage would create a new harm. It would strain the relationship among the members of these communities. Individuals would fear that they might be killed because a terrorist lives within their midst, and in time this fear would erode the human bonds that are the
essence of civilization. The sovereignty of each nation protected by the UN Charter might provide a bulwark against such fears. Yet, as the case of Yemen indicates, ordinary citizens can never be sure of the deals that their national leaders might make with the sponsor of the War on Terror.

For these reasons, a rule might well be adopted prohibiting lethal attacks against suspected terrorists if such attacks would entail the killing of persons who are clearly and unambiguously civilians. Such a rule might have prohibited the drone strike targeting Anwar al-Aulaqi, who at the moment of the attack was riding with a colleague who had not, at least according to news reports, forfeited his status as a civilian. Or imagine that Anwar al-Aulaqi had a three-year-old daughter and she was riding in the car with him at the time of the attack. The United States might have been entitled to kill Anwar al-Aulaqi under the theory that he was an enemy combatant or the leader of an organization that is a co-belligerent of al-Qaeda, but no such theory could be advanced to justify the killing of his daughter. The fact that she was not a target would not modulate either the inhumanity of killing her or its offense to the Constitution.

The targeted killing of Anwar al-Aulaqi raised the further question as to whether American citizens enjoy a special immunity from being targeted. The relevance of American citizenship in the formulation and application of counterterrorism policies over the past decade has been a controverted issue on which neither President Bush nor President Obama took consistent or well-reasoned positions. The jurisdiction of the military commissions established by Bush through an executive order issued in the fall of 2001 was confined to foreign nationals. The pattern was continued in the Military Commissions Act of 2006 and the Military Commissions Act of 2009. On the other hand, the policy of prolonged, indefinite imprisonment without trial instituted by President Bush and continued by President Obama
reached both citizens and foreign nationals, though in 2011, rather belatedly, President Obama announced that this policy would not be applied to United States citizens.
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To take another example, Bush’s original executive order authorizing the NSA to engage in warrantless wiretapping as part of the War on Terror made no distinction between citizens and foreign nationals. The FISA Amendments of 2008 (renewed in 2012) limited such surveillance to situations where the target of the interception is a foreign national located abroad (although the other parties to the telephone conversation may be United States citizens located in the United States). With respect to all three of these policies, it is difficult to know whether the distinction drawn by the president or Congress between citizens and noncitizens was based on politics, understood in the crudest way, or on some unarticulated theory governing the reach of the Constitution—or both.

The position of the Bush administration on the scope of its policy of targeted killing is unclear. There are no reports that the Bush administration had targeted an American citizen, although in one instance an American citizen—Kamal Derwish—was killed as the result of a drone attack aimed at another person—a foreign national—who was in the car in which Derwish was riding. The Obama administration killed a number of American citizens through the use of drones (some were bystanders), but as we know, at least one—Anwar al-Aulaqi—was the target of such an attack. The targeting of American citizens has been strongly criticized in political quarters, but it is difficult to formulate a constitutional theory that would allow the president to target foreign nationals but not American citizens. By its very terms, the Due Process Clause protects persons, not citizens, and as such provides no additional protection to citizens. The power to target alleged terrorists flows from the theory that the government is entitled to kill enemy soldiers on the battlefield and, as we discovered in many wars, United States citizens have
taken up arms against the United States and in those circumstances have been lawfully subjected to lethal force used by the United States.

In his Northwestern Law School speech, Holder expressed some equivocation on the relevance of citizenship. He began his analysis by noting that “some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad,” and concluded, “it is clear that United States citizenship alone does not make such individuals immune from being targeted.” Then the attorney general switched course. He insisted that “the government must take into account all relevant constitutional considerations with respect to United States citizens,” and ended his analysis on a note that misrepresented the Due Process Clause when he suggested that it protects only citizens. In that context, he said: “Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.” In response to stormy congressional hearings that were triggered by the targeted killing of al-Aulaqi, Holder wrote a two-sentence letter to Senator Rand Paul declaring that the president lacked “the authority . . . to kill an American citizen not engaged in combat on American soil.” He offered no constitutional theory that would limit the administration’s targeting policy in its war against al-Qaeda in this way. No one not engaged in combat (or its terrorist equivalent) can be killed, on or off American soil.

The attorney general was not clear in identifying the source of the rules he announced governing targeted killings. At one point he declared, “The Constitution’s guarantee of due process is ironclad, and it is essential.” Moreover, he never denied that the principles protecting civilians or requiring proportionality,
or even the imminence requirement, are rooted in the Due Process Clause. At other times, however, he referred to the principles of distinction and proportionality as requirements of “the law of war”; he even spoke of a “principle of humanity” as the source of yet another rule he mentioned—to use weapons in targeted killings that “will not inflict unnecessary suffering.” This language suggests that the rules governing the targeted killing of alleged terrorists announced by the attorney general were inspired by the laws of war or by international human rights law. Let us assume, however, that the attorney general was in fact grounding the rules he announced in constitutional due process. Let us also assume that the rules he announced and to which he bound himself are roughly the same as a fair-minded judge might have announced in the al-Aulaqi suit. I would maintain, nevertheless, that there is a special value to having these rules announced by a court, and that the dismissal of the al-Aulaqi suit was improper.

The attorney general is, of course, entitled to interpret the Constitution. Indeed, I would say that he, like every government official, has an obligation to do so. The Constitution is the basic law of the nation that defines the duties and prerogatives of every official acting on behalf of the United States. Yet the interpretation of the Constitution by a judge has an authority and force that transcends that of the attorney general or any other official in the executive or legislative branch. This authority derives not from the personal qualities of the individuals involved—Eric Holder vs. John Bates—but from the rules that govern the exercise of their power. Although Holder’s speech, like the opinion Bates could or should have rendered, made appeal to public reason, the judge, unlike the attorney general, is insulated from control by any political agency; he is required to listen to all aggrieved parties; and he must conduct his
proceedings in an open court.
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These are important differences, and because of them the judge’s interpretation of the Due Process Clause and the announcement of the standards governing the targeted killings of alleged terrorists would have the authority of the law. They will govern even when there is a change of administration, and they command a measure of respect not due to the standards put forward by the attorney general in his Northwestern speech.