The President has authority to
respond to the imminent threat posed by al-Qa'ida and its associated forces,
arising from his constitutional responsibility to protect the country, the
inherent right of the United States to national self defense under
international law, Congress's authorization of the use of all necessary and
appropriate military force against this enemy, and the existence of an armed
conflict with al-Qa'ida under international law. Based on these authorities, the President may
use force against al-Qa'ida and its associated forces. As detailed in this white paper, in defined
circumstances, a targeted killing of a U.S.
citizen who has joined al-Qa'ida or its associated forces would be lawful under
U.S. and
international law. Targeting a member of
an enemy force who poses an imminent threat of violent attack to the United
States is not unlawful. It is a lawful act of national self defense.
The authority for this extraordinary power to dodge the
Fifth Amendment and play the role of judge, jury, and executioner is justified
by appealing to the 2001 Authorization for Use of Military Force (AUMF).
In order for the assassination of an American citizen to be
authorized by the White House, three criteria must be met:
[T]he 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 at least 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 violent 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.
‘Imminent’ is broadly defined, stretching the meaning of the
word beyond the bounds of sense:
First,
the condition that an operational leader present an “imminent” threat of
violent attack against the United States
does not require the United States
to have clear evidence that a specific attack on U.S.
persons and interests will take place in the immediate future. Given the nature of, for example, the
terrorist attacks on September 11, in which civilian airliners were hijacked to
strike the World Trade Center and the Pentagon, this definition of imminence,
which would require the United States to refrain from action until preparations
for an attack are concluded, would not allow the United States sufficient time
to defend itself….
By
its nature, therefore, the threat posed by al-Qa'ida and its associated forces
demands a broader concept of imminence in judging when a person continually
planning terror attacks presents an imminent threat, making the use of force
appropriate. In this context, imminence
must incorporate considerations of the relevant window of opportunity, the
possibility of reducing collateral damage to civilians, and the likelihood of
heading off future disastrous attacks on Americans.
The possibilities of this assassination doctrine being
abused are countless. The most serious problem is the subjectivity of the
criteria. Given that all is required is that an “informed, high-level official
of the U.S.
government” believe that a person is an “operational leader continually
planning attacks against U.S.
persons and interests,” there is no safeguard against mistakes. This criterion
essentially equates being accused with being guilty. It is also unclear what
precisely constitutes an “operational leader” or an “associated force.”
However, the nuances of the assassination doctrine need not
be analyzed because the AUMF simply does not give the federal government the
power to violate the Fifth Amendment by executing American citizens that appear
on any “kill list.”
1. The AUMF Is Not a
Congressional Declaration of War
A. War Must Be Declared Against a
Specific Entity
The key section of the AUMF states:
(a) IN
GENERAL- That the 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.
The strangest thing about the
language of the AUMF is that it does no specifically name any nation against
which the United States is declaring war. The Constitution grants
Congress the power to declare war and this logically requires that a specific
party have war declared against it. This was the practice that Congress used in
previous legitimate declarations of war.
Be it enacted by the Senate and
House of Representatives of the United States of America in Congress assembled,
That war be and is hereby declared to exist between the United Kingdom of Great
Britain and Ireland and the dependencies thereof, and the United States of
America and their territories….
WHEREAS, by the act of the Republic
of Mexico, a state of war exists
between the Government and the United States….
Be it enacted by
the Senate and House of Representatives of the United States of America in Congress assembled, First. That
war be, and the same is hereby, declared to exist, and that war has existed
since the 21st day of April, A.D. 1898, including said day, between the United
States of America and the Kingdom of Spain….
That the President be, and he is hereby, authorized and
directed to employ the entire naval and military forces of the United
States and the resources of the Government
to carry on war against the Imperial German Government….
That the state of war between the United
States and the Imperial Government of Japan
which has thus been thrust upon the United
States is hereby formally declared….
That the state of war between the United
States and the Government of Germany which
has thus been thrust upon the United States
is hereby formally declared….
In each of these cases Congress declared war against a
specifically named nation. The language in the AUMF is essentially an
unconstitutional delegation of the power to declare war to the President. By not specifying which nation the United
States was declaring war upon, Congress
failed in its attempt to declare war at all.
B. There Is No Precedent for Declaring War
Against Groups or Individuals
Wars are traditionally declared and waged against nation
states rather than against groups or individuals. Formal American declarations
of war were made against Great Britain,
Mexico, Spain,
Germany, Japan,
etc. Even “informal” wars – whether or not they were constitutional – were
declared upon France,
the Barbary States, Russia,
North Korea, North
Vietnam, Iraq,
etc. Neither al Qaeda nor its “associated forces” are a nation state or even a
quasi-nation state like the Confederate States of America
or any organized revolutionary group seeking to establish itself as the formal
authority of a nation state. The United States
has never declared war upon an equivalent group before. For example, Congress has never declared war
upon the Ku Klux Klan, the Cosa Nostra, the Purple Gang, etc.
There is good reason to insist that war can only be declared
upon a nation state or quasi-nation state. If war can be declared against any
group or individual, then a dangerous slippery slope is created. Allowing
Congress to declare war upon a group that is not a nation state would allow
Congress to subvert due process by simply declaring war against any organized
criminal group. This is also why
Congress must not be allowed to declare war against an individual. This would
allow Congress to declare war against any individual against which it does not
have a sound criminal case and simply assassinate him or her instead of
conducting a criminal trial.
2. “Terrorists”
Cannot Be Both Enemy Combatants and Criminals
The inconsistent treatment of terrorists by the United
States government is a transparent attempt
for them to “have their cake and eat it, too.” The government views terrorists
as enemy combatants when that suits it purposes but views “terrorists” as
criminals when that suits its purposes. If it wishes to claim that it has
legitimately declared war upon al Qaeda and its “associated forces,” then it is
obligated to consistently treat these parties in the same manner that nation
states have traditionally been treated in wars. However, if it wishes to claim those
terrorists are criminals, then it may not use the rules of war to deprive them
of their natural rights to due process.
A. If Al Qaeda and Its “Associated
Forces” Are Enemy Combatants
If al Qaeda and its “associated forces” are to be treated as
being akin to enemy nation states in wars, then a number of startling
consequences result. First, 9/11 cannot be treated as a criminal act. The United
States has itself declared that preemptive
war is legitimate by waging military actions against nations such as Iraq
and Libya
without those nations having attacked the United
States or imminently preparing to do so.
Therefore, the 9/11 attacks would have to be treated merely as a military
attack like the NATO bombings of Libya.
Second, the fact that civilians were targeted in the World
Trade Center
is irrelevant. One of the tragic facts about modern “total war” is that
civilians are targeted just as military targets are. The United
States bombed civilian cities such as Tokyo,
Dresden, Hiroshima
and Nagasaki during World War II, Hanoi
during the Vietnam War, Baghdad
during the Gulf War and Iraq War, etc. There is simply nothing about the 9/11
attacks that rises to the level of war crimes if the attacks are treated as
acts of war rather than as criminal acts. Finally, the leadership of al Qaeda
must be treated as the leaders of any enemy nation is during a war. Viewing the
late Osama bin Laden as being similar to Confederate General Robert E. Lee is
indeed disturbing, but that would follow from treating al Qaeda as a nation
state at war with the United States.
B. If Al Qaeda and Its “Associate Forces”
Are Criminals
If al Qaeda and its “associated forces” are to be treated as
criminals, then they may not be denied due process. The Fifth Amendment applies
to both American citizens and foreign nationals who are accused of committing
crimes in the United States.
Timothy McVeigh, Terry Nichols, Michael Fortier, Eric Rudolph, Zacarias
Moussaoui, Ramzi Yousef, Eyad Ismoil, etc. were all given due process and
convicted of terrorist crimes in civilian courts. There is no logical reason
why current members of al Qaeda should not be treated in the same manner. Therefore, the use of assassination in order
to subvert due process is inappropriate and unconstitutional.