Steve and Marty make what seem to me very valid legal arguments in response to Jonathan Hafetz’s post on Opinio Juris, in which Jonathan argues that the Feinstein Amendment’s principal effect would be to embed citizenship-based distinctions (in this case, with regard to military detention) “that undermine protections for millions of non-citizens in the United States … and widen the rift between international human rights and the U.S. Constitution.”
Their response to that post and the idea that citizenship-based distinctions don’t undermine protections for non-citizens don’t address several important policy dimensions of this issue, however.
First, it is important to keep in mind how citizenship-based distinctions look from abroad, and the way these distinctions may undermine support for U.S. legal and policy arguments. Foreign skeptics of U.S. counterterrorism policies derived from the general idea that we’re engaged in armed conflict – such as military detention, targeted killing, military commissions – legitimately question why Americans should get extra protections that they and other non-Americans don’t. Inside the United States, these distinctions appeal to our sense of constitutional tradition and seem only to increase rights above the status quo baselines. Outside the United States, these distinctions, however legally justified they might be and however infrequently they might matter in practice, reinforce perceptions of American exceptionalism and they may undermine arguments based on military/intelligence necessity. That has been my experience in the past in talking to foreign audiences and trying to explain and justify U.S. legal and policy arguments (Attorney General Holder’s remarks about the special protections and standards with regard to lethal targeting of U.S. citizens sounds very different abroad than it does here, for example).
Second, Jonathan’s post raises a concern about the politics of counter-terrorism policy that I think has validity, even if he and I often disagree about where that policy equilibrium should settle. Scholars such as David Cole and Neal Katyal have also argued that a danger of citizenship-based distinctions in counter-terrorism law and policy is that they skew political checks. I’m over-simplifying their claims here, but one way to ensure strong political accountability in this area is to make sure that risks and costs don’t fall entirely on foreigners. Here’s a prediction: for better or worse, I bet that Congress would be even more likely to enact a very broad AUMF in response to future terrorism threats if the next time around they can do so in a way that excludes implied authority to detain U.S. citizens long-term without trial.
The citizenship-based distinctions of the Feinstein Amendment may in the end be justified, but I point out these risks (which, like I say, put aside the doctrinal arguments that Steve and Marty make) because the implications of this trend may be significant and far-reaching.