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Part 1 of 2.

Anwar Al-Awlaki
Anwar  Al-Awlaki, US citizen and accused Al Qaida operative
killed by US drone attack in Yemen on September 30, 2011
You cannot qualify war in harsher terms than I will. War is cruelty, and you cannot refine it [...] -William Tecumseh Sherman
This week, the Obama Administration released to the Senate Intelligence Committee a white paper (PDF) analyzing:
the U.S. government['s] use [of] lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force of al--Qa'ida
Many people who I respect have severely criticized this white paper and its reasoning. While I have in mind much of the criticism, I do not intend to make a specific response to any particular criticism in this two part essay.

Instead, I will analyze the policy, as described in the white paper, considering the following: (1) the Constitution; (2) the laws of the United States; (3) international law; (4) the laws of war; and (5) my untrained assessment of the efficacy of the policy in the fight against Islamic extremism.

This analysis will be lengthy, detailed and will travel deep into the weeds. If interested, follow me below the squiggle and look for Part 2 later this week.    

1. The Authority of the President of the United States to Authorize Lethal Force

The first question that the use of lethal force outside of conventional theaters of battle,  most notably, drones, presents, is whether the president of the United States is empowered to authorize such use of lethal force.

The first consideration is the U.S Constitution. Article II, Section 2, provides, in pertinent part:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.
Conservatives have argued that this power alone authorizes the president to do any manner of things, including authorizing lethal force. I have disagreed. See, e.g., Does War Make Presidents Kings? and A Little Bit of Monarchy.

However, with regard to the use of lethal force in the "War on Terror," the president's power is established by the September 18, 2001 AUMF, which provides in pertinent part:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [...] [Emphasis supplied.]
It seems inarguable to me that there is no issue under the 2001 AUMF in terms of Congressional restrictions regarding "the use of lethal force in a foreign country outside the the area of active hostilities against a U.S. citizen "determined by the President to be a person who is a member of an organization that planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or person, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The 2001 AUMF provides no geographic restrictions on the "use of all necessary and appropriate force." It further provides the president unfettered discretion to "determine" the person against whom "necessary and appropriate force"  can be applied.

There clearly is no question here of the president exceeding the authority he is provided by the 2001 AUMF. This is not a president violating express US laws like George Bush did when he violated FISA and the anti-torture laws.

The Legislative Branch clearly gave the Executive Branch its authorization to apply lethal force outside a conventional theater of battle. Without this authorization, it is unlikely that the president has the power to use such force, absent clear evidence of an imminent strike by an entity or person.

So Congress "empowered" the president, but does something else prohibit such an action?  

2. Potential Constitutional Prohibitions Against The Use of Lethal Force Outside a Theater of Battle

The fact the Congress authorizes something does not mean the Constitution permits it. Does the Constitution prohibit such use of lethal force as authorized by the president? In a lawsuit filed by the ACLU, Al Aulaqi v. Panetta (PDF), the ACLU, representing Anwar Al Awlaki's father Nasser, articulated  the theories:

The killings violated fundamental rights afforded to all U.S.
citizens, including the right not to be deprived of life without due process of law. [...]

Defendants’ killing of Anwar Al-Aulaqi was unlawful. At the time of the killing, the United States was not engaged in an armed conflict with or within Yemen. Outside the context of armed conflict, both the United States Constitution and international human rights law prohibit the use of lethal force unless, at the time it is applied, lethal force is a last resort to protect against a concrete, specific, and imminent threat of death or serious physical injury. Upon information and belief, Anwar Al-Aulaqi was not engaged in activities that presented such a threat, and the use of lethal force against him was not a last resort. Even in the context of an armed conflict, the law of war cabins the government’s authority to use lethal force and prohibits killing civilians who are not directly participating in hostilities. The concept of “direct participation” requires both a causal and temporal nexus to hostilities. Upon information and belief, Defendants directed and authorized the killing of Anwar Al-Aulaqi even though he was not then
directly participating in hostilities within the meaning of the law of war. [...]

First Claim for Relief

Fifth Amendment: Due Process

41. Defendants’ actions described herein violated the substantive and procedural due process rights of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi under the Fifth Amendment to the Constitution. Defendants Panetta, McRaven, Votel, and Petraeus violated the Fifth Amendment due process rights of Anwar al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi by authorizing and directing their subordinates to use lethal force against them in the circumstances described above. The deaths of Anwar al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi were a foreseeable result of Defendants’ actions and omissions.

Second Claim for Relief

Fourth Amendment: Unreasonable Seizure

42. Defendants’ actions described herein violated the rights of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi to be free from unreasonable seizures under the Fourth Amendment to the Constitution. Defendants Panetta, McRaven, Votel, and Petraeus violated the Fourth Amendment rights of Anwar al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi by authorizing and directing their subordinates to use lethal force against them in the circumstances described above. The deaths of Anwar al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi were a foreseeable result of Defendants’ actions and omissions.

Third Claim for Relief

Bill of Attainder

43. Defendants’ actions described herein with respect to Anwar Al-Aulaqi violated the Constitution’s Bill of Attainder Clause. Defendants’ actions constituted an unconstitutional act of attainder because Defendants designated Anwar Al-Aulaqi for death without the protections of a judicial trial in the circumstances described above. The death of Anwar al-Aulaqi was a foreseeable result of Defendants’ actions and omissions.

From the perspective of U.S. law then, the argument for the unlawfulness of the use of lethal force against persons outside a theater of battle appears to boil down to the Fifth Amendment guarantee against the deprivation of life, liberty or property without due process, the Fourth Amendment prohibition against unreasonable search and seizures and the prohibition against Bills of Attainder.

Of the three claims the ACLU presents on behalf of the elder Al Awlaki, I find the Fifth Amendment argument the most compelling and will solely address it (I find the other arguments to be mere throw-ins, to be frank).

My first observation regarding this argument is that there is a misunderstanding of the Fifth Amendment Due Process Clause as applying solely to American citizens. This is incorrect. See, e.g., David Cole, Are Foreign Nationals entitled to the same Constitutional Rights As US Citizens? (PDF) ("the Court had stated that the Due Process Clause does not "acknowledge[] any distinction between citizens and resident aliens."). While the killing of American citizens by the U.S. government is shocking to our political conscience, the Fifth Amendment applies to all "Persons" (corporations too), not just American citizens. Conversely, as the Court stated in Hamdi v. Rumsfeld (2004):

A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,” Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.
As the Department of Justice White Paper notes, the Fifth Amendment does not bar the use of force in authorized hostilities. See p. 3 of White Paper, citing Hamdi. Nor can it. However, the constitutional argument presented is more nuanced than this. The argument is not that each killing requires a guilty finding by a jury of peers, but rather that it requires something more than the say so of the president and/or his men when the use of lethal force is authorized outside a conventional theater of war.

This is a compelling argument, especially outside the context of a conventional theater of battle. After all,  both the constitutional Habeas right and the Geneva Conventions recognize that the process for review of enemy combatant status must provide adequate due process:

With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, “the risk of erroneous deprivation” of a detainee’s liberty interest is unacceptably high under the Government’s proposed rule, while some of the “additional or substitute procedural safeguards” suggested by the District Court are unwarranted in light of their limited “probable value” and the burdens they may impose on the military in such cases. Mathews, 424 U.S., at 335.

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’ ”(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950))[Emphasis supplied.]

If due process requires this for deprivation of liberty for a person captured on the battlefield, one can hear the argument, how can it not require at least this for the deprivation of life by an authorized targeted killing?

The argument has a gut appeal, but the type of due process that can be offered in a decision to maintain the detention of an accused enemy combatant simply can not be the same as that afforded a person who may be a target of military force.  A detained person no longer poses a threat. An at large person does. This consideration alone tells us the due process provided will not be the same in the two situations.

3. What Due Process Must Be Afforded A Person Subject to a Kill Order Outside a Theater of Military Operations?

In the DOJ White Paper, the Obama Administration argues that the due process requirements are met when (1) an "informed, high level government official" (an undefined term) determines that a person "poses an imminent threat of violent attack against the United States," (2) where a capture operation would be unfeasible, and (3) when such operation is consistent with the laws of war. White Paper, p. 6.

But this is truly not an answer for what we traditionally think of as due process. For lawyers, procedural due process usually means notice and an opportunity to be heard. The Obama Administration Department of Justice argues that traditional notions of notice and opportunity to be heard can not be afforded in these circumstances because of "the realities of war."

To me, this is a compelling argument in practical and legal terms. War includes as a major component, the concept of surprise. It is one thing to provide notice and opportunity to be heard once a person has been captured—the threat is no longer imminent. But while a person believed to be an enemy combatant is at large, the threat is real and the dangers, not only of attack against the country but to the military units involved in the conflict, remain active.

In my view, this explains the difference between the due process afforded a detained person classified as an "enemy combatant" and a person under a kill order.

But this difference does make the process by which the Obama Administration analyzes kill orders in a non-theater of battle setting adequate. What is missing from the process is an advocate for the person who is subject to the potential kill order. Such an advocate, it seems to me, can be provided to the person who may be subject to the kill order. After all, the consequences are much more severe and final.

Who gets to make sure that the process is adequate? In theory, it is Congress' role to oversee the Executive. But how do we the People know what our government is up to?

Unfortunately, like the truth, transparency will be one of the first casualties of war. But the balance of interests will require secrecy in my view. Consider the increase in the threats to our military personnel who might have to engage in a future action against a person who might be subject to a kill or capture mission.

Indeed, this is clearly one of the prime considerations for the use of unmanned drones for the kill operations as opposed to military personnel—the risk to the lives of our soldiers. In my view, this must be a prime consideration in determining military operations and the restrictions placed upon them.

This consideration is also important to the minimization of casualties of civilians. To many, the use of drones leads to larger civilian casualties than conventional ground force operations. I think this is, at best, unproven, and more likely, wrong.

I say this with full awareness of the 182 page Stanford/NYU study (PDF) claiming drones lead to higher civilian casualties. The study claims:

In the United States, the dominant narrative about the use of drones in Pakistan is of a surgically precise and effective tool that makes the US safer by enabling “targeted killing” of terrorists, with minimal downsides or collateral impacts. This narrative is false.

Following nine months of intensive research—including two investigations in Pakistan,
more than 130 interviews with victims, witnesses, and experts, and review of thousands
of pages of documentation and media reporting—this report presents evidence of the
damaging and counterproductive effects of current US drone strike policies. Based on
extensive interviews with Pakistanis living in the regions directly affected, as well as
humanitarian and medical workers, this report provides new and firsthand testimony
about the negative impacts US policies are having on the civilians living under drones.

I believe this is a subjective take on the efficacy of the policy, not an objective calculation of comparison of civilian deaths that would be caused by the use of military personnel operations in lieu of drone strikes. The overall impact of the use of drones may be counterproductive (I will discuss this point in Part 2), but that is, in my view, a different question from whether drone strikes cause more civilian casualties than would a different type of military operation.

These considerations strongly relate to the second condition the DOJ White Paper states must be met to make a kill order outside a theater of war lawful: the requirement that capture mission be "unfeasible."

"Unfeasible" is one of the most fungible words in the English language. It does not mean impossible. Nor does the word "feasible" mean "easy." The White Paper does not provide an easily comprehensible answer because it is not an easy question to answer. Feasible, in the White Paper, means the mission could be executed within a specific "window of opportunity" and permission to act is granted by the country where the targetted person is located. The White Paper also contends that the risk to personnel is a significant consideration. As I stated before, the risk of increasing civilian casualties should be a consideration of feasibility as well.

In the end, feasibility is a de facto military judgment on all of the effects of the choice of military option. In my view, it really has no place in the traditional legal analysis here. Capture is, it seems to me, the preferred option for military operations in almost all instances if only for intelligence gathering purposes. See the Prepared unclassified testimony of John Brennan to the Senate Select Committee on Intelligence (PDF), p. 23, Question 36, quoting the September 16, 2011 Speech of John Brennan at the Harvard Law School.

The real due process concern is, as discussed above, in the procedure by which a person is considered subject to a kill order.

The third criteria discussed in the White Paper, consistency with law of war principles, specifically the the principles of necessity, distinction, proportionality, and humanity, are difficult to assess by objective criteria regarding this specific question. They go to the wisdom of the policy, but not, in my view, the legality, which really should focus on the protections and advocacy provided to the person subject to the kill order.  In any event both the White Paper and the prepared testimony of John Brennan to the Senate Select Committee on Intelligence lay out the reasoning that these four principles are being met. Brennan states. See in particular John Brennan's answer to question 38, at p. 25 of his prepared testimony.  Brennan's answer is not, to use legal parlance, "clearly erroneous," though reasonable minds certainly disagree about his conclusions.

Which brings us back to Due, as in Due Process, and does the current process afford sufficient process. I think it does in legal terms, but it should and could be better. A responsible and vigilant Congress would act to put into place rules ensuring adequate process.

4. Are There US Laws That Prohibit Kill Orders Outside A Theater of War?

Starting at p. 10 of the White Paper, the Justice Department discusses Section 1119(b) of Title 18 which makes it a crime to kill "a national of the United States" in a foreign country. But "unlawful killings" are excluded from the criminal definition. Thus if the killings are "lawful," this provision of U.S. law is rather circular and, in my view, not helpful to our analysis here.

5. The War Crimes Act and International Law

Commencing at p. 15, the White Paper discusses potential prohibitions under international law within the context of the War Crimes Act, which makes it a U.S. crime to commit a "war crime."

According to the White Paper, these provisions are implicated by Common Article 3 of the Geneva Conventions.

The White Paper concludes that since the use of lethal force against active enemy combatants is expressly permitted, the authorization of killings outside of theaters of battles is not "murder" as the term is defined by the Geneva Conventions.

This is not controversial as far as it goes, but it begs the question (new meaning)—how is a person determined to be a enemy combatant and does such process provide adequate due process protection?  

My defense of the Obama Administration policy provides one exceptionally important caveat—a fear that the decisions to designate a person a kill target does not have an effective "devil's advocate" to argue against the designation. In Hamdi, the Court stated:

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’ ” (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 617 (1993) (“due process requires a ‘neutral and detached judge in the first instance’ ” (quoting Ward v. Monroeville, 409 U.S. 57, 61—62 (1972)). “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ ” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.
Indeed, President Obama said:
In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.

However, as I stated earlier, the situation is not analogous to an order to engage in a military operation targetting a person. The due process afforded a detained enemy combatant can not be the same as that afforded an at large enemy combatant. But better due process can be afforded and should be, even if the law does not require it.

6. War Is Hell

At the heart of the dispute about this policy is the realization that war is the abandonment of civilization.

By definition, it is messy, cruel, unfair, violent and well, hell.

We have established rules that attempt to set limits on the evil that men do in war. Against torture. Against targetting civilians. For humane treatment of prisoners. And many more.

But remember what is in compliance with the "civilized" laws of war—killing. And we can not refine that central cruelty. That is why war must always, always, always be a last resort.

In Part 2, I will examine the efficacy of the policies discussed herein.

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