When does a US citizen lose their constitutional rights?
That’s the topic of an Obama administration memo that just leaked to CBS News.
The memo looks at when the US Armed Forces may “legally” kill a US citizen abroad without due process of law who is thought to be a senior Al Qaeda operative. It makes for a fascinating example of how legal rhetoric can be used to (attempt to) justify acts that would seemingly be illegal.
The justification proceeds in a few steps.
First, international law (UN Charter Article 51) recognizes an inherent right to a UN member’s self defense. Under the US Constitution, Congress can declare war and the president can execute war – both did. Various academic commentaries suggest that when you go to war, you may be killed.
But aren’t the laws of war primarily about the law of war between nations?
Not so fast. The September 18, 2001 Authorization for Use of Military Force specifically allows action against “nations, organizations or persons” the president “determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…” (emphasis added)
And the U.S. Supreme Court, in Hamdan v. Rumsfeld (2006), noted that the conflict with Al Qaeda was “not of an international character.” The Obama team uses this to argue why it would have authority to pursue operatives regardless of the specific country that they are in when they are in “conflict between a nation and a transnational non-state actor.” (I’m pretty sure that’s not what Justice Stevens had in mind when he wrote that opinion, upholding the notion that individuals continue to have some rights even in non-traditional conflicts. The Obama team however uses Stevens’ factual observation as Supreme Court endorsement of the globe-trotting approach to war. But I digress…)
Is any nation fair game for staging these operations? The International Criminal Tribunal for the Former Yugoslavia cited the notion that an armed conflict only exists during intense and prolonged conflict. But the Obama team dismissed this limitation, citing Nixon era memos justifying the expansion of the Vietnam war into Cambodia. Incursions beyond Afghanistan could be justified if the third nation gave its consent. But, in a classic turn that only a lawyer could love, consent is not necessary if the nation is “unable or unwilling” to do US bidding.
This seems to shear “consent” of much meaning. But that’s only the beginning of the approach in the memo of recognizing the existence of a right or correct procedure, only to eviscerate it.
Citing various Supreme Court precedents related to due process, the Obama memo notes that individuals have a weighty interest in staying alive, but so do nations in protecting themselves. So how to conduct the balancing exercise. The memo suggests the following:
In view of these interests and practical considerations, the United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in the following circumstances(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of attack against the United States; (2) where a capture operation would be infeasible -and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles. In these circumstances, the “realities” of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.
This seems pretty elastic. As a practical matter, I have difficulty seeing a situation where the president wouldn’t be able to get around this.
But then, the memo cuts back even the constraints this formulation imposes.
- The US does not need clear evidence of the “imminence” of the threat. Because the attacks could be sporadic and unpredictable, evidence may not be possible. Instead, the official may consider considerations like “the relevant window of opportunity” to take action that may be merited.
- Capture could be deemed not feasible if there would be (undue) risk for US personnel.
- The law of war principles are “necessity, distinction, proportionality and humanity,” but these too do not mandate particular outcomes.
- Judges probably shouldn’t get involved in evaluating the president’s calls, since foreign policy is best left to the executive.
At some point, I wonder why a nation at war would attempt to justify their actions using the language of law at all. This memo has heavy citations to precedent, and lots of legal rhetoric, but one is left trying to imagine a scenario where it could not be twisted to justify whatever the president wanted to do anyway. And who would be empowered to evaluate it, if not the courts?