Citizenship and the Holder Speech on Targeted Killings

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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).

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    pcaban says

    March 8, 2012

    Thank you for an interesting analysis. I dare to ask the following question: In your opinion, the relevant US doctrine "could in fact be consistent with international human rights law". My hypothesis is that law, including HR law, should, where possible, correspond to the rules of (empirical) world in which we live. Now, how can "the individual pose an imminent threat of violent attack against the United States", if he is present on the other side of the globe (Afghanistan, let's say), the US authorities are aware of his whereabouts and definitely are able to prevent him from entering the US soil? (I suppose that the definition of "the violent attack against the United States" is not restricted to the attacks against the US embassy situated or US troops stationed in relevant foreign country on the other side of the globe.)

    JordanPaust says

    March 8, 2012

    Marko: Erik Holder did not say that self-defense is limited to a circumstance of foreign state consent or a so-called unable or unwilling standard being met -- he used these "for example" -- and as most textwriters know there are no such limits to permissible self-defense under Article 51 of the U.N. Charter. see, e.g., http://ssrn.com/abstract=1718548
    Also, the AG does not seem to understand what the international law of self-defense requires when he uses the phrase "imminent threat," because an imminent threat is not even a threat, much less an imminent attack, and much less the start of an "armed attack" as required under U.N. 51. I wish that textwriters would also stop using the "imminent threat" phrase, since it has nothing to do with the law of self-defense. If one wants to change the express language of Article 51 with respect to anticipatory self-defense, one should use the phrase "imminent attack."
    With respect to human rights law that is binding on the United States, human rights law applies globally (e,g., U.N. Charter, arts. 552 ("universal"), 56) and in all social contexts (e.g., also in time of war), but the persons protected under relevant human rights law are those who are in the actual "power or effective control" of the United States, not those targeted from 30,000 feet in the air by a drone. see, e.g., the ssrn article noted above and http://ssrn.com/abstract=1520717 (which notes that the U.S. is not bound by the more limiting European Convention).
    You are correct that even under our Constitution U.S. citizenship should not make a difference because the Fifth Amendment applies to persons (which can include aliens and certainly has within the U.S. and in some cases abroad) and the Constitution is a restraint on any conduct of the U.S. Executive at any time and in any place, although Holder was correct that the Fifth Amendment has to be interpreted with respect to context. It is not so much a question of alien rights abroad as restraints on Executive power. E.g., The Tiede case in the U.S. Ct. for Berlin (1979).

    Marko Milanovic says

    March 8, 2012

    Pcaban,

    Thank you for your comment. While rare, these cases can certainly happen in practice. Imagine if the US found about the whereabouts of Khalid Sheikh Mohammed before the 9/11 attacks. Note also that while an attack or an imminent attack against the US is necessary for the US to have the right to self-defense as a matter of the jus ad bellum, human rights law does not require the US to be threatened itself - lethal force could be used by the US to (say) prevent an attack on the Afghan civilian population.

    Jordan,

    With respect, the extraterritorial applicability of HR issue is far more complicated than you make it seem. Why, for instance, doesn't the ability to kill an individual by a drone constitute 'control' over that individual? Why should physical custody alone constitute such 'control'? Isn't the power to kill the essence of control? The limitation you propose - which derives from the Bankovic decision of the European Court - is inherently arbitrary and unstable and prone to collapse, which is why it hasn't been followed by other human rights bodies (e.g. the Human Rights Committee), and why the European Court has had to depart from it in a number of inconsistent cases (e.g. Pad, Issa, Isaak, and most recently Al-Skeini). (Note that this line of argument presumes that the jurisdiction/control over individuals requirement actually applies to negative obligations of states under HR treaties, which is in my view at least doubtful.)

    jpaust says

    March 8, 2012

    Marco: I note that the actual "power or effective control" test is found remarks by the CAT Committee as well as the Human Rights Committee under the ICCPR, and that the U.S. is not a European state.
    By the way, even if someone would believe that a person 30,000 feet below was under the actual power or effective control of the U.S. (and note that they can be running, driving a car, etc. and cannot be captured from 30,000 feet) the ICCPR's test regarding deprivation of life is "arbitrary" deprivation and, if a state complies with either UN 51 self-defense requirements or law of war targeting requirements, the death would not be "arbitrary."
    This is generally why battlefield commanders, for example, have nothing to fear from the fact (we agree) that human rights law applies during war.
    The Bush-Cheney Admin. ploy (among 8 others -- see http://ssrn.com/abstract=1798582 ) was that human rights law does not apply during war.

    Marko Milanovic says

    March 8, 2012

    Jordan,

    Why exactly do you insist on pointing out that the US is not a European state? Again, the European Court's approach to extraterritorial application of the ECHR is MORE RESTRICTIVE than is the Human Rights Committee's approach to the extraterritorial application of the ICCPR. The Human Rights Committee has NEVER tried to limit the extraterritorial application of the Covenant in the same way in which the European Court has tried to do so in Bankovic. As for the Committee Against Torture, it has also opted for a very expansive approach to the extraterritorial application of the CAT, at times even contrary to the explicit text of the treaty, and it has obviously never considered a Bankovic or a targeted killing-like scenario. I note in passing that the incessant citation to your own work in practically every single comment you post on this blog is not particularly helpful, especially when you do not actually engage with the arguments of your interlocutor.

    Second, with regard to the interplay between IHL and IHRL, you again present your own view on very contentious points of law as if it were somehow unimpeachably correct. It is most certainly NOT accepted by all scholars working in the IHL/IHRL field that the fact that that a particular killing is lawful under IHL means that it is automatically, ipso facto non-arbitrary or lawful under IHRL. The whole point of the IHL/IHRL project is that in SOME cases the mixing of IHRL into the equation can add something over and above the rules of IHL. This is what the Israeli Supreme Court did for example in the Targeted Killings case, when it restrained the application of IHL by introducing human rights necessity requirements into the mix. And this is precisely what the Obama administration is now doing under the Fifth Amendment - it is saying that it is not enough for the targeting a citizen to be lawful under IHL in order to be lawful under the Due Process Clause. It must also satisfy additional criteria such as imminence or necessity, in the sense that capture is not feasible, criteria which do not exist in IHL. The whole point of my post is that there is no reason of principle that I can see why that same approach could not effectively be extended to non-citizens as well.

    jpaust says

    March 8, 2012

    Marko: the U.S. is not bound by Article 2(2) ("absolutely necessary") of the European Convention, which contains limitations regarding killings that are not contained in the ICCPR. Some have claimed that standards used in the McCann case binds the U.S. re: targeted self-defense killings.
    Holder did not quite state that a killing must be necessary (although he did state "capture is not feasible") and his statement about "[t]he principle of necessity" was that it merely "requires that the target have definite military value," which I believe is a different consideration than whether or not the targeting of a target with definite military value is reasonably needed in a specific context. Even with respect to feasibility of capture, he noted that such must be a "fact-specific" determination and that one consideration would be "whether capture can be accomplished ... without undue risk to civilians or to U.S. personnel," but the word "undue" seems a bit looser than "necessity" per se.

    Mihai Martoiu Ticu says

    March 9, 2012

    ==I have never seen it persuasively explained why this should be the case==

    Because otherwise the U.S. could not do whatever she pleases with impunity. For the same reason U.S. rejected the various propositions for creating an International Court for Human Rights. U.S. is just following George Kennan’s advice:

    “We will have to dispense with all sentimentality and day dreaming and our attention will have to be concentrated everywhere on our immediate national objectives. We should cease to talk about vague and unrealistic objectives such as human rights, the raising of living standards and democratisation. The day is not far off when we will have to deal in straight power concepts. The less we are hampered by idealistic slogans the better.”

    pcaban says

    March 9, 2012

    Marco Milanovic: I get the point, but respectfully doubt your arguments. Khalid Sheikh Mohammed was not in any of the planes on 9/11. Although he is alleged to be "the principal architect of the 9/11 attacks", his killing most probably would not physically prevent the terrorists in the planes from committing what they did. I would say that planning something (an attack or a house) as an architect does not mean that the attack (or the building of a house) is imminent - if we stick to the usual meaning of words.

    9/11 was not a part of armed conflict, but a terrorist attack. Flirting with these US ideas about "war on terror" means, in my opinion, opening Pandora box.

    AGD says

    March 12, 2012

    I've always felt the same way with regard to the "citizenship debate". I am glad that someone finally addressed this topic and exposed it for what it is: morally repugnant. Excelent choice of words. Thanks!

    TD says

    March 13, 2012

    Marko, Thank you very much for your interesting post.

    As you have observed the requirements set out by Eric Holder "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". So in order to comply with international (humanitarian) law, the US government does not need to abide by the standards contained in the Fifth Amendment’s Due Process Clause. Thus, one could safely say that the US administration does not fail to satisfy its obligations under international law and that there is no legal reason to comply with a higher standard that is not required by international law.

    Of course, your analysis goes to the interpretation of the domestic law, i.e. the US constitution as such. And yes, Holder's interpretation, namely that non-US nationals not on US territory do not benefit from the Due Process Clause, might be at variance with the very wording of the clause and it might also be "morally repugnant" to adopt such an interpretation of the US constitution. It is indeed deplorable that the predominant view seems to be that the Due Process Clause was designed to protect the people of the United States against arbitrary action by their own government and is not being interpreted as restraining the federal government's actions against aliens outside US territory.
    But this interpretation, althought not desirable, may well be legally correct (it has, probably, its merits) and, this is the crucial point for me, this interpretation does not lead to a situation where the protections accruing to non-US nationals not on US territory in an armed conflict under IHL would be undermined or diminished. The additional (from the viewpoint of what is required by IHL targeting rules) constraints introduced by the Due Process Clause do not apply to non-US nationals not on US soil, but this does not in any way alter the constraints already in place.
    Should governments be condemned that seek to observe in an armed conflict (only) the rules specifically applicable therein - i.e. first and foremost the protections of IHL? The interpretation of the US constitution by the Supreme Court and by Eric Holder may be regrettable and anachronistic, but to my mind it is more important to establish whether the US government acts in conformity with >international< law when carrying out targeted killings in an armed conflict.

    Marko Milanovic says

    March 13, 2012

    TD,

    I accept your point, but only from the standpoint of IHL. The problem arises if international human rights law also regulated the situation, i.e. (1) applies extraterritorially to a targeted killing and (2) substantively contributes something in addition to IHL, by providing more protection to the affected individual - just like the Due Process Clause would seem to do. My view on both of these points is that IHRL indeed applies in that way, and under IHRL there would be no place for discrimination based on citizenship, either on the preliminary issue of extraterritorial application or on the substantive issue of how the particular HR norm should apply. My further point is that if it accepts that the Due Process Clause can apply extraterritorially in a very flexible kind of way, the US government should not fear the same type of application regarding human rights treaties.

    GIN says

    March 13, 2012

    In my opinion, the American innovation does not consider:
    1) the rights territorial suvereign - jurisdictions of host country of the citizen of the USA;
    2) cases of double and multi citizenship;
    3) impossibility of passport verification of citizenship in real to fight.

    jpaust says

    March 13, 2012

    With respect to the effective control test:
    Consider the circumstance in war where soldier X has aim at enemy soldier Y who is about 30 meters away, but soldier Y does not indicate that she wishes to surrender and falls to the ground rolling to her right and pulls out a pistol and kills soldier X. Soldier X obviously did not have actual power or effective control over soldier Y.