In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: “extrajudicial killing” as an anti-terrorism policy.
The statement at issue:
“As a general matter, it would be entirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in the use of military force in the armed conflict with al-Qaeda, the Taliban, and associated forces as well as established international law that recognizes our right of self-defense.”
— Statement issued by the Obama Administration, with the identity of the official who made it withheld, after the September 30 targeted killing in Yemen of Anwar al-Aulaqi, a U.S. citizen, by Hellfire missiles fired from a remote-controlled drone aircraft operated by the Central Intelligence Agency. The statement was reported by The Washington Post, October 1. For the report, click here.
We checked the Constitution, and…
An order by the President or top military or intelligence officials to carry out the intentional killing of a U.S. citizen suspected of being a terrorist leader who intends and makes specific plans to kill Americans raises grave constitutional questions. But they have not been decided by any court, and, it appears, may never be.
Only a single case in history has even raised those constitutional issues in court, and that ended without a decisive constitutional ruling, either way. However, it did exclude the judiciary from any second-guessing of so-called “targeted killing.”
The constitutionality, then, of killings without charges or a trial of any kind – as an anti-terrorism policy — depends upon the judgment of the Executive Branch, applying legal standards that, so far, remain secret except for the summary statement quoted above. That statement relied upon the Authorization for Use of Military Force, passed by Congress soon after the 9/11 terrorist attacks, and a concept of self-defense based on international law.
News reports out of Washington have said that the Obama Administration’s lawyers produced a lengthy legal memorandum (still secret), finding clear authority for the September 30 killing of Anwar al-Aulaqi in Yemen. It apparently was drafted to deal specifically and only with him as a death target.
Aulaqi, a dual U.S.-Yemeni citizen born in New Mexico, had been pursued for months by the CIA and the U.S. military, and was supposedly near the top of an official “kill list.” Officials have variously described him as an al-Qaeda propagandist, with unusually persuasive powers among young jihadists, and as a leader of terrorist operations based in the Arabian Peninsula. He has been linked by officials to at least three specific incidents of terrorist murders, or attempted murders, of Americans.
He died in one of the hundreds of air strikes that the U.S. has aimed at terrorist figures – strikes that so far have killed three U.S. citizens. It is not a coincidence that the one court case seeking to test the so-called “targeted killing” policy involved Aulaqi himself. It was filed not by him, but by his father, Nasser al-Aulaqi, a Yemeni national, on his son’s behalf. The lawsuit claimed that any intentional killing of a citizen, outside of an area where explicit armed conflict was going on, violated the constitutional rights of that citizen.
A federal judge in Washington, D.C., District Judge John D. Bates, dismissed the lawsuit last December, for a variety of jurisdictional reasons – but, most importantly, he agreed with a government argument that the courts simply have no competence to weigh the strategic military and intelligence rationale for targeted killing.
Bates did say, though, that the policy raised “stark, and perplexing, questions.” Among those, he said, was this: “Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?”
But, the judge went on to say that, to answer that question, and others, a court would have to delve deeply into strategic considerations that the Constitution expressly assigns to the Executive Branch. Thus, he said, the elder Aulaqi’s lawsuit had to be dismissed because it raised a “political question.” He wrote: “There is no constitutional commitment to the courts for review of a military decision to launch a missile at a foreign target.”
The decision was not appealed, and thus stands as a clear precedent against such lawsuits.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.