A couple of days ago the US Attorney General, Eric Holder, gave a major speech on the legal parameters of the US targeted killing policy (text of the speech; analysis by Bobby Chesney onLawfare and Deborah Pearlstein on Opinio Juris). Nothing terribly new here as a matter of international law, bearing in mind the previous speeches by Harold Koh and John Brennan. Targeted killings are still being justified via self-defense coupled with the unwilling or unable standard as a matter of the jus ad bellum, and as part of an armed conflict as a matter of the jus in bello. The analysis is still very rudimentary and avoids many complex issues, but that’s what one can expect from a speech as a opposed to a detailed legal memo. The applicability of human rights law is still denied or not addressed; ad bellum and in bello issues at times still conflated.
What is new in the speech is the standard that the Obama administration thinks applies to the killing of US nationals (e.g. Anwar Al-Awlaki) outside US territory under US constitutional law, specifically the due process clause of the Fifth Amendment:
Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean 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. Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
As both Deborah and Bobby note in their posts, many uncertainties remain as to how these standards should be applied (e.g. what exactly is an imminent threat, when exactly is capture not to be considered feasible, etc.). At the very least, however, these standards introduce protections additional to IHL, whose targeting rules do not require that a combatant may be killed only when posing an imminent threat and only if capture is not possible. Indeed, this looks very much like a human rights analysis in terms of necessity to deprive a person of life, if flexible and watered-down in an extraterritorial context. As a matter of policy – and bearing in mind that the devil is always in the details – this is an approach that I think is a good one in this context, and could in fact be consistent with international human rights law as well.
But what I find most interesting here is how American lawyers – and policy makers and the public at large – so easily fall into citizenship-speak when discussing targeted killings, or in other words how much citizenship still matters in determing what process is due to an individual before he is killed. Such reliance on citizenship is anathema to universality-based international human rights law, but still pervades the social-contractarian thinking that underlies US constitutional law and legal discourse. It is so often simply assumed in US legal thinking and argument that citizenship matters a great deal even for very basis protections, as e.g. evident in cases like Eisentrager, Verdugo, Hamdi or Boumediene.
I wonder whether such strong reliance on citizenship is actually consistent either with the original design or understanding of the Constitution’s framers or with any identifiable normative ideal or moral justification. Note that the Attorney General is actually wrong when he says that the “Fifth Amendment’s Due Process Clause … says that the government may not deprive a citizen of his or her life without due process of law.” The Due Process Clause makes no mention of citizenship, but rather says that “no person … shall be deprived of life, liberty, or property, without due process of law.” Nor does the Bill of Rights in any other way imply that it only applies to US citizens when the US government acts against them outside US territory – that construction, right or wrong, is entirely atextual. And it is that same founding generation which famously declared that: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This is a universalist sentiment if there ever was one.
I simply find it entirely normatively incoherent to say, as is the current state of US constitutional doctrine, that before being killed by the US government (1) a US national on US soil is entitled to due process; (2) a non-US national lawfully on US soil is entitled to due process (e.g. a tourist); (3) a non-US national unlawfully on US soil is entitled to due process (e.g. illegal Mexican immigrants can’t be just shot on sight etc); (4) a US national outside US soil is entitled to due process; but that only (5) a non-US national outside US territory has no entitlement to due process. I just cannot identify a principle whereby (5) can truly be distinguished from (1)-(4), and I have never seen it persuasively explained why this should be the case – this distinction is all too often assumed rather than argued, and if it argued this is usually done in a perfunctory way.
The idea that the value of human life should depend on that individual’s citizenship is utterly morally repugnant, bearing in mind that citizenship in the modern world is a more a matter of formality or accident of birth rather than of any moral desert. Even within a social contractarian framework, placing such weight on citizenship is particularly perverse when the individual concerned has actually done his very best to destroy the putative social contract or his connection to it, as with Anwar Al-Awlaki. Why exactly is Al-Awlaki’s life deserving of more legal protection than (say) Osama bin Laden’s is simply beyond me. I can fully understand effectiveness-type arguments – e.g. that we should not impose rigid capture-before-kill requirements if capture is not a realistic possibility. But if it is possible to effectively and aggressively pursue the fight against terrorist citizens, as with the killing of Al-Awlaki, while applying a minimum of due process, I don’t see why the same protections should not extend to non-citizens as well. And if this is possible in the US constitutional context, it is also possible under international human rights law, against whose extraterritorial application the US should stop arguing so inflexibly. (For more on citizenship in this particular context, see chapter III, section 5 of my book).