The memo
by the Justice Department’s Office of Legal Counsel which authorized the
targeted drone killing of American citizen Anwar al-Awlaki without a trial was
released earlier this week. The memo reasons that the targeted killing of
American citizens such as al-Awlaki is not a violation of 18 U.S.C. § 1119
which makes it a federal offense for an American citizen to murder or attempt
to murder another American citizen in a foreign nation. The memo appeals to the
public authority justification as providing an exemption to the statute in such
cases of targeted killings. Public
authority justification comes into play where “the defendant knowingly
committed a criminal act but did so in reasonable reliance upon a grant of
authority from a government official to engage in illegal activity.” The memo
concludes that the Department of Defense and CIA operations involved with the
targeted killing of al-Awlaki were justified under a particular variant of
public authority under “the lawful conduct of war.”
This defense of the al-Awlaki assassination
is dependent upon the War on Terror being an actual war, and this is dependent
upon the Authorization for Use of Military Force (AUMF)
being a legal Congressional declaration of war. As argued at length in a previous
post, the AUMF is not a declaration of war because war must be declared
against a specific entity, there is no precedent for declaring war against
groups or individuals rather than against nation states, and terrorists cannot
be viewed as both criminals and enemy combatants.
Assuming for the moment that AUMF is a
legitimate declaration of war, the next step of the memo’s justification for
the targeted killing of al-Awlaki is based upon the Supreme Court ruling in Hamdi
v. Rumsfeld (2004). In that landmark case, the Court ruled that
American citizens designated as enemy combatants have a right to challenge
their detainment under the Due Process Clause of the Fifth Amendment. The Court
supported its plurality opinion that it was appropriate to limit the amount of
due process that an American citizen enemy combatant received by appealing to a
three part test formulated in Mathews
v. Eldridge (1976):
- The interests of the individual in retaining their [life, liberty, or] property, and the injury threatened by the official action
- The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
- The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication.
In Hamdi,
the Court ruled that an American who was being detained as an enemy combatant
after being captured on a battlefield overseas required notice of the charges,
access to counsel, and an opportunity to be heard. Although the Court held that
the due process requirements of placing the burden of proof on the government
and of making hearsay inadmissible would place too much of a burden on the
executive branch during hostilities, the due process requirements for such
individuals were nevertheless still stringent.
The government claims that capturing
al-Awlaki was infeasible. It concludes that it was reasonable to believe that a
decision-maker could conclude the threat posed by al-Awlaki’s activities to United
States persons was “continued” and
“imminent” and that this outweighed the risk of possible erroneous deprivation.
However, the hole in the memo’s reasoning
is that depriving an American citizen of his or her life is far more serious
than depriving him or her of liberty as in the cases of the detention of
American citizen enemy combatants as in Hamdi.
This makes it reasonable to conclude that the amount of due process to be
afforded to the target of assassination should be equivalent to that afforded
to detained enemy combatants if not even greater.
The biggest issue is the Orwellian
nature of the War on Terror created by the AUMF. The very vague nature of
organizations like Al Qaeda makes it all too easy for the federal government to
find even the most arbitrary of connections between an American citizen and Al
Qaeda. Even where such connections do not exist—like the alleged connections
between Al Qaeda and Saddam Hussein that the Bush administration “found”—this
will not necessarily discourage the government. Using its tortured logic, more
and more Americans will become potential targets of targeted killing. Public
authority and “the lawful conduct” of war can also just as easily be used as
justifications for committing domestic homicides. The government sees the
entire world as a “battlefield” in the War on Terror, so no American citizen is
necessarily safe from losing due process in the name of doing “whatever it
takes” to defeat the terrorists. Who decides whether an American citizen
constitutes a “continued” and “imminent” threat to the United
States? The President? What in Article II of
the Constitution grants the Caesar-like power to decide life or death with a
thumbs up or down like an Emperor to the President?
