Armed Conflict Foreign Relations & International Law

Andrew Kent on the White Paper as a Plus for Civil Liberties

Benjamin Wittes
Friday, February 8, 2013, 8:14 AM
Here's a counter-intuitive view of the White Paper--from the always-interesting Andrew Kent:
Although many critics with a strong civil liberties and human rights bent deplore the DOJ White Paper for various reasons, there is actually something in there they should be pleased about.  The White Paper fleshes out a bit the Obama Administration’s relatively rights-protective view on an unsettled question about the applicability of

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Here's a counter-intuitive view of the White Paper--from the always-interesting Andrew Kent:
Although many critics with a strong civil liberties and human rights bent deplore the DOJ White Paper for various reasons, there is actually something in there they should be pleased about.  The White Paper fleshes out a bit the Obama Administration’s relatively rights-protective view on an unsettled question about the applicability of constitutional protections for U.S. citizens who are associated with enemy forces in an armed conflict and are targeted by the U.S. military. The White Paper states that DOJ “assumes that the rights afforded by the Fifth Amendment’s Due Process Clause, as well as the Fourth Amendment, attach to a U.S. citizen even when he is abroad” (at 5).  But the memo concludes that U.S. citizenship, in the specific context addressed (senior operational leader of Al Qaeda or associated forces, located abroad, who has been determined to the Executive to be an imminent threat) “does not give . . . constitutional immunity from attack” (at 5).  The White Paper then goes on to perform Due Process Clause and Fourth Amendment reasonableness analysis, tailored to the specific context.  It finds that these Al Qaeda leadership targets who are U.S. citizens have “weighty” and “compelling” interests in their life and liberty that must be taken into account in the Due Process balancing analysis (at 6).  The White Paper performs a similar analysis of the Fourth Amendment (at 9). This is not breaking news. Attorney General Holder’s Northwestern speech, for example, stated that “that the government must take into account all relevant constitutional considerations with respect to United States citizens---even those who are leading efforts to kill innocent Americans,” and briefly discussed the Due Process Clause. But the White Paper confirms an analysis of constitutional rights in this context that is potentially much more rights-protective than it might have been. One view is that, generally speaking, constitutional rights protect U.S. citizens abroad, but that these rights simply do not exist for Americans who have joined an enemy force and are being targeted in an armed conflict.  In other words, there is a categorical exclusion for wartime targeting.  Another view, the one adopted by White Paper, is that all relevant constitutional protections apply to U.S. citizens abroad at all times, but that the particular constitutional rights relevant here, namely the Due Process Clause and Fourth Amendment’s ban on unreasonable seizures, in their application require contextual balancing that takes into account the military targeting setting and, as applied to these facts, results in little if any actual protection here. Which view---categorical exclusion or the opposite---is correct could end up mattering a great deal.  For instance, in internal administration legal debates about future U.S. citizen targets, or in a future judicial consideration of the issue, if that were to occur, the White Paper’s view of the applicability of constitutional limitations would easily allow rights-protective stances to be taken by the decision-maker.  The contextual balancing of interests required by the Due Process and Fourth Amendment reasonableness case law requires consideration of the target’s liberty interests and invites fact-specific distinctions to be made that could disallow some kinds of targets.  On the other hand, an Executive lawyer or court applying the categorical exclusion view would probably be limited to sketching broader, categorical outer boundaries to targeting authority, a kind of legal analysis that would likely give less consideration to individual liberty interests and contextual specificity. Which of these two is this the appropriate way to think about individual rights of U.S. citizens in the military targeting context?  The question is supremely difficult and unsettled in our law and practice. A plausible argument can be made that these constitutional provisions have no application to targeting actions against a U.S. citizen enemy fighter in a military conflict in a foreign country.  In other words, a case can be made for the categorical exclusion view which was implicitly rejected by DOJ. Over the course of the Civil War, the Supreme Court, Executive and Congress all came to agree that, even though secession was illegal and null, and so residents of the Confederate States of America were still U.S. citizens living in U.S. territory, for military purposes residents of the CSA would be treated as de facto enemy aliens (noncitizen nationals of a country at war with the United States).  Under well-established prior law, nonresident alien enemies, and all enemy alien combatants no matter where located or domiciled, lacked any protection from the Constitution or other domestic law, and any right to protection of the courts of the United States (a categorical exclusion from the Constitution’s protections). However, this view was generally thought to be premised on the fact that the war was a territorially-defined conflict of massive proportions, in which a large part of the country had claimed to have established an independent nation, and practical circumstances required that, in the military context, this claim be provisionally accepted for the duration of the war.  Thus the Union determined that it would treat CSA military detainees as legitimate prisoners of war rather than domestic rebels and traitors, because otherwise the CSA would retaliate against Union prisoners leading to a spiraling bloodbath. But what about U.S. citizen enemy fighters who were not residents or nationals of an actual or, as in the Civil War, de facto foreign power?  Did the sole fact that a U.S. citizen took up arms and joined the enemy in a military conflict against the United States categorically strip away constitutional protections?  By and large the courts did not address this question during the Civil War.  The practice of the war suggests the Executive’s view that formal residence in the CSA was not required in order to be targeted unreservedly (except as limited by the international laws of war).  Certainly the U.S. military never stopped on the battlefield to question whether any of the men in the ranks of the Confederate forces were residents of the Union who had gone over to the other side.  (Similarly, the U.S. military did not do this in World War II even though U.S. citizens were known to be serving in enemy military forces.)  Still this Executive precedent does not fully address the “Al-Awlaki problem,” as we might call it, because perhaps the imperatives of large-scale pitched battles against massed enemy forces means that there is no practical ability (or reason) to separately treat enemy soldiers according to their citizenship.  On the other hand, when the U.S. is engaging in targeting on a much smaller and more discriminating scale, as it is with its current drone war, perhaps this practical ability to draw distinctions based on citizenship makes it constitutionally mandatory for the U.S. government to do so. For what it’s worth, the Executive during the Civil War seems to have had the categorical exclusion view even in contexts where individual consideration of citizenship was possible.  Military commissions were used extensively against guerrillas in loyal states and, in that individual adjudicative setting, it would have been possible to determine the residence and hence citizenship (de facto or de jure) of the defendant, and treat residents of loyal states differently and better – perhaps moving them to civilian courts.  But there does not appear to be evidence that the U.S. military thought this was legally required.  Congress’s 1863 habeas statute seems to implicitly have had the same view.  On the other hand, Ex parte Milligan (1866) broadly proscribed military commissions against civilians from loyal states. We could try to parse the language in the Supreme Court's more recent detention and military commission cases involving U.S. citizens, namely Ex parte Quirin (1942) and Hamdi, but in my view neither Court speaks with any clarity about the Al-Awlaki targeting situation, which of course was not presented by the facts of either case.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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