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The Washington Post on Al-Aulaqi

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Monday, September 6, 2010 at 1:22 PM

My former colleagues at the Washington Post editorial page this morning have a thoughtful piece on the targeting of Anwar Al-Aulaqi, on which Kevin Jon Heller and I sparred earlier in the week. The Post largely takes my view of the subject, though the editorial does not analogize Mr. Al-Aulaqi to a hostage taker. The nub of the argument reads:

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. [State Department Legal Adviser Harold] Koh said in [a] speech that this practice is already followed, even in cases involving non-citizens. “The imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat” are taken into account before striking, he added.

In the case of an American, the government should go to even greater lengths before carrying out an attack. For example, the president should consider whether the target can be notified of his status and given the opportunity to turn himself in. The executive should also consider making public the general criteria — excluding ultra-sensitive methods and sources — that it uses to designate an individual for the target list.

U.S. citizens do not lose all their constitutional rights when they head overseas, but they also cannot use their citizenship as a shield when they join enemy forces with the intention of carrying out violent attacks against the country or its interests.

A few thoughts:

First, the Post has correctly sketched out here a some gradations of the problem that are  independently important and worth highlighting. The issue is not the U.S. military’s or the CIA’s killing of a citizen fighting with the enemy overseas per se. If our forces are fighting, say, the Iraqi or German or Japanese armies and they engage a particular unit in doing so, nobody would suggest that they need to pause first and verify that none of the soldiers in that unit are U.S. citizens. To the contrary, we expect them to engage the enemy, and a U.S. national who signs up with the enemy is, as the Supreme Court has said in the detention context, not relieved by his citizenship of the consequences of his belligerency. So far, the issue is actually easy.

It only gets difficult when U.S. forces specifically target the U.S. national knowing of his citizenship. And even then, it presents a difficult question only in narrow circumstances. In very few will specifically targeting a U.S. national constitute a lawful and reasonable option. Where the option of arrest either by U.S. forces or some other government, for example, is live and realistic, targeting the person will generally fail at least two different tests. The country in question will not typically consent to a use of force on its territory in such circumstances, creating a potentially serious violation of that country’s sovereignty. And the option of arrest will greatly erode as well the analysis of the imminence of the threat the target poses. This is why we do not have drones circling over Europe and why our agents don’t jab people with ricin-tipped umbrellas on the streets.

As a practical matter, the circumstances in which targeting an American would be both lawful and reasonable is limited to situations in which, as the Post suggests, state incapacities in the host country make “other lawful means of apprehending the person . . . unavailable or too dangerous to pursue.”

The Post also correctly focuses on the question of notice, which seems to me important because notice gives rise to the option of surrender. The presence of notice is obviously not a legal precondition for targeting a person, but it strikes me as an important prudential step in Al-Aulaqi’s case in legitimizing whatever steps against him the government may ultimately take. It’s easy to imagine the circumstances in which U.S. forces would not want a given person even to know he was on their radar screens, let alone that they meant to capture or kill him. But where doing so is not operationally self-defeating, giving notice as publicly as possible–and making clear that the United States will accept the target’s surrender as an alternative to killing him–is definitely best practices.

Finally, I also agree with the Post that the government should say as much as humanly possible about what added review the executive branch applies to a targeting decision that concerns a U.S. national. I’m not sure in a Platonic sense what the right amount of added review is–probably a lot–but I see no good reason why the general bureaucratic procedures should not be discussed publicly.