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On Due Process and Targeting Citizens

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Saturday, October 1, 2011 at 11:47 AM

The Washington Post leads this morning with a story headlined “Secret U.S. Memo Sanctioned Killing of Aulaqi,” which opens:

The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials.

The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.

While there was no dissent within the administration, however, critics of the operation decry its lack of due process. And, meanwhile, a senior administration lawyer with whom I corresponded yesterday suggests that the operation is legal on the same grounds that it was legal to target Admiral Yamamoto during World War II or would have been lawful to target a U.S. national who had joined up with the German army. The implication here is that the U.S. national is no different from the foreign national once he has signed up with the enemy.

All of this raises the question of what precisely due process requires with respect to the targeting of a U.S. national fighting on the other side of this conflict. Bobby, Jack, and I all addressed this question yesterday, mostly by negative inference; by saying why the strike did not violate due process, that is, we hinted at some due process standards. But I think it’s worth laying out in more detail exactly what–at least in my opinion–the Due Process Clause really requires here. So here is my best guess at what that secret memo probably said–or at least, my view of what it should have said.

Let’s start with a basic principle: First, the Due Process Clause does apply to the U.S. national overseas–even the U.S. national who joins up with the enemy in a conflict–and it does limit the authority to knowingly use force against him. This point is not clearly a matter of constitutional doctrine; the courts have not addressed the question clearly. But it is both what I believe the doctrine should be and what I believe the doctrine will ultimately be if the judiciary ever surmounts the jurisdictional obstacles to considering the question directly. As a prudential matter, moreover, it is important that the government not behave as though it is not the case, since by doing so, it will incur grave litigation risk to the extent the courts head in that direction.

If we assume that due process applies, it follows that the Al-Aulaqi operation is not the simple legal equivalent of the Osama Bin Laden operation, where the legal analysis runs simply: (1) is he “part of” Al Qaeda? Yes; (2) Has he completed a surrender? No; (3) Is it consistent with the laws of war to target him under the circumstances in which it becomes possible to do so? Yes; (4) End of story. With Al Aulaqi, or any citizen, one has to add an additional question: Has he been granted the process due him under the Fifth Amendment?

In other words, at least in my view, the analysis with respect to Admiral Yamamoto–whether his ultimate targeting would have been lawful or not–would have had an additional element had he been a citizen. Absent this requirement, there really is nothing–other than pure political constraints–to inhibit a president from targeting any American he believes to be part of enemy forces. And that authority does seem to me too broad. When a Navy SEAL has Osama Bin Laden in his sights and, absent a surrender, pulls the trigger at close range, this does not cause me any sleep loss at all. On the other hand, had a U.S. service member knowingly and intentionally fired on Anwar Al Aulaqi in circumstances in which his capture was feasible without incurring undue risk to forces or nearby civilians, I would consider that a real problem as a matter of due process.

This basic principle, however, does not answer the question of the legality of the killing. Rather, it raises the question of what precisely due process requires in these admittedly unusual circumstances. The chatter on the political left notwithstanding, it clearly does not require prospective judicial review of targeting decisions or military operations. The Due Process Clause does not even require that in domestic settings involving police actions–like a hostage situation, for example. What it requires in the hostage situation, rather, is that force only be used as a last resort when other options are not available. And it seems to me that it requires something similar here too. That is to say that I think it requires a strong preference for the capture, instead of the kill–and it requires the exhaustion or non-availability of reasonable options either for a conventional trial or for military detention with appropriate habeas review. In other words, while for the non-citizen, targeting is lawful purely on the basis of status, with respect to the citizen, it is lawful on the basis of status plus necessity.

This, in turn, raises the question of when, in this context, one has reached the point of necessity–or last resort, if you will. I propose the following answer to this question. For due process purposes, one has reached the point of last resort, at which lethal force against a U.S. national becomes lawful, when (1) the suspect has been identified with a high degree of confidence using the best available intelligence subjected to heightened internal review, (2) no option for capture plausibly exists without undue risk to forces or civilians, and (3) the foreseeable consequence of a failure to interdict the suspect will be the loss of opportunity to neutralize the threat he poses and thus presents an unreasonable risk to human life.

Notice that this test does not cast the idea of a last resort in some temporal sense, like that the suspect is on his way to planting a bomb and our forces are running out of time. It treats, rather, imminence or urgency in terms of lost opportunity. That is, the government has the duty to protect society, and–given what it knows about the target–it cannot pass up opportunities to stop him when they present themselves. As a functional matter, this test will be far more permissive with respect to countries that cannot or will not exercise jurisdiction over their territory than it will in countries that do, where sovereignty concerns will also–and for the same reason–play a far bigger role. After all, the availability of options for capture in a country that has control over its territory, a functioning rule of law, and a willingness to cooperate will tend to be far stronger than in countries with large ungoverned spaces. But the key question seems to me simple: Are innocent people likely to die if we don’t act? That question, at least conceptually, isn’t profoundly different than it is with a domestic hostage situation.

Let’s hold up what we know about the Al Aulaqi case to this test:

(1) He has clearly been identified with a high degree of confidence using the best intelligence available and a multi-layered review process as a high-level operational terrorist leader in a group that the government reasonably regards as part of Al Qaeda (or at least cobelligerent with it) and who has actually planned attacks on behalf of that group. Critically, this intelligence, some of which has become public, is not simply about his role as a charismatic, inspirational jihadist cheerleader or as an internet propagandist, facts that would not, repugnant though these activities are, be grounds for targeting him.

(2) Efforts to capture Al Aulaqi have clearly been made. This morning’s New York Times, for example, has a lengthy story about such efforts over a long period of time:

But in fact, the Yemeni security services, many trained by American Special Forces soldiers, appear to have pursued Mr. Awlaki for almost two years in a hunt that was often hindered by the shifting allegiances of Yemen’s tribes and the deep unpopularity of Mr. Saleh’s government.

In 2009 and 2010, Mr. Awlaki seems to have been mostly in the southern heartland of his own powerful tribe, the Awaliq, where killing him would have been politically costly for the government, and capturing him nearly impossible. The area where Mr. Awlaki was finally killed, in the remote north, did not afford him the same tribal protection. There are also many tribal leaders in the far north who receive stipends from Saudi Arabia — the terrorist group’s chief target — and who would therefore have had more motive to assist in killing him.

The hunt for Mr. Awlaki has involved some close calls, including the failed American drone strike in May, and the previously unreported operation in the Yemeni village. Yemen’s elite counterterrorism commandos, backed by weapons from Yemen’s regular armed forces, formed a ring around the town as commanders began negotiating with local leaders to hand Mr. Awlaki over, said one member of the unit.

“We stayed a whole week, but the villagers were supporting him,” said the counterterrorism officer, who is not authorized to speak on the record. “The local people began firing on us, and we fired back, and while it was happening, they helped him to escape.”

What’s more, Al Aulaqi has been on notice for quite some time that he is wanted and has not sought to surrender or turn himself in, and the government has made clear it would accept his surrender. So there’s a strong basis on which the government can argue here that it has pursued remedies short of lethal force. It has tried to take Al Aulaqi alive and remained open to the possibility but the chance did not pan out. What did pan out was an opportunity to attack a car from a remote, stand-off position.

(3) Would the foreseeable result of not taking this chance have been the loss of innocent life? This question seems to me to answer itself. A government worth anything simply has to take seriously a man who has been personally involved in terrorist actions in the past, who promises more, and who is taking active steps to conduct them.

Under these circumstances, I don’t have grave due process anxieties about targeting a U.S. national.

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