Monday, October 10, 2011

Dead or Alive -- or Dead if Alive's Not Feasible?

By Mike Dorf

The NY Times is reporting on a 2010 Office of Legal Counsel memo that authorized the killing of Anwar al-Awlaki that concluded it was lawful, but only on condition that his live capture was not feasible.  After a big caveat, I'd like to raise a question about that conclusion.

The caveat is that I haven't seen the memo, the content of which was apparently described to Charlie Savage of the Times, so it's quite possible that the memo makes persuasive arguments in response to the points I'll raise below or is not as described in the story.  To be sure, Savage is an excellent reporter.  He won the 2007 Pulitzer for his work at the Boston Globe on Presidential signing statements, and when I've spoken with him, he has struck me as very knowledgeable.  Still, a reporter is only as good as his sources, and in this story they're not named.  The memo could have been mis-described or incompletely described.  Moreover, the memo's authors are reported as David Barron and Marty Lederman, who were clearly the brains of OLC in the beginning of President Obama's term, and knowing them both, I'd expect first-rate analysis from them.  With that said, I now come to my puzzlement.

Let's begin with the law of war.  On the battlefield, there is no obligation to capture enemy combatants, unless they have surrendered.  That is also true for enemy combatants who happen to be your own nationals.  Thus, if American soldiers or marines had encountered al-Awlaki fighting for the Taliban on the battlefield in Afghanistan, they could have shot him dead--even if, say, al-Awlaki were wearing a visible American flag lapel pin identifying himself as a U.S. citizen and even if the Americans were armed with Star Trek-style phasers that could have been used to "stun" al-Awlaki and the other enemy combatants.

Meanwhile, in civilian life the opposite presumption applies.  Suppose the FBI had evidence of al-Awlaki's planning the operational details of terrorist missions against American targets and knew him to be hiding in a house in a suburb of Detroit.  Could government snipers simply shoot al-Awlaki?  Of course not.  That would be an unreasonable use of force as a matter of due process and an unreasonable "seizure" under the Fourth Amendment.  If, in the course of attempting to arrest al-Awlaki, the government encountered resistance, federal officials could then use force, including lethal force.  They could even use lethal force to present his escape if he attempted to flee.  (The leading case is Tennessee v. Garner, which the Times story says that the OLC memo cites.)  But it would not be permissible simply to kill al-Awlaki if capturing him were feasible.

Thus, the law of war and the constitutional rules applicable to domestic life differ dramatically on a key particular: Whether an arrest must be attempted if feasible.

Yet note the key move that the memo makes to argue that killing al-Awlaki did not violate either the executive order barring assassinations or a federal statute barring Americans from murdering Americans abroad: Those prohibitions do not apply to force that is permissible under the law of war.  But if the war paradigm applies, then it is puzzling that the memo concludes that a targeted killing is only permissible if a capture is not feasible.  As noted above, if this is war, then targeted killing of belligerents (so long as it does not result in disproportionate collateral civilian casualties) is permissible regardless of whether a capture is feasible.

So why does the memo conclude otherwise?  This is rife speculation, but I'll raise a few concluding points:

1) Perhaps Barron and Lederman were rightly worried about treating killings off of any obvious "battlefield" as fully subject to the war paradigm.  In this view, they were adding a normative gloss requiring that capture not be feasible as a requirement that applies to all killings that seek a "war" justification off of any battlefield.  They might be relying on an Israeli Supreme Court case that purports to find an obligation to use minimal force against civilians taking a direct part in hostilities or some limited authority that builds on this case.

2) There are two problems with assuming Barron and Lederman were relying on the Israeli case, however.  First, it is controversial among international lawyers.  Second, and perhaps more unsettling here, if it really is a principle of the law of war, then it applies to all civilians, not just Americans.  But if so, then under the OLC memo, the bin Laden mission was apparently unlawful.  According to a New Yorker story quoting a special ops officer: "There was never any question of detaining or capturing" Bin Laden. "No one wanted detainees.”  The story goes on to say: "The Administration maintains that had bin Laden immediately surrendered he could have been taken alive."  But that's just the conventional understanding of the law of war; surrendering combatants must be taken captive.  The Administration's position on the Bin Laden raid was not the broader view taken by the OLC memo.  And presumably that's because al-Awlaki was an American but Bin Laden was not.

3) On what theory would an enemy American within the war paradigm but off of a conventional battlefield be entitled to a try-to-capture rule, whereas a foreign enemy is not?  One might point to the Hamdi case, which seems to take for granted that American captives are entitled to due process rights that may not apply to foreign captives.  However, the Supreme Court's later holding in Boumediene seems to extend even greater protection (albeit as a matter of the right to habeas rather than simply due process) to foreign detainees at Gitmo.

4) But the Gitmo detainees have habeas/due process rights in virtue of where they were held, not simply in virtue of having come into contact with the U.S. By contrast, U.S. citizens have constitutional rights against their own government wherever they are.  So it would be possible to fashion a rule governing war-but-not-quite-a-battlefield for enemy Americans that doesn't apply to foreign enemy fighters.

5) The key word in that last sentence is "fashion."  Again, subject to the caveats discussed above, it looks to me like the OLC memo extended some protection to enemy Americans that they would not enjoy under a more aggressive reading of the existing law or that would also have been enjoyed by foreign terrorism suspects under a more dovish reading.  I am very curious to learn exactly how the OLC memo steered this creative middle course.

In the meantime, comments on how well I've reverse-engineered the OLC memo are welcome--especially from Professors Barron and Lederman!

NB: For help with my analysis of the law of war, I thank my colleague Jens Ohlin.


Joe said...

Charlie Savage used anonymous sources here. What is the betting line that either of those two, one of whom recently analyzed an executive official's speech on use of force on Opinio Juris, was one?

I think it's hard to judge where they were going here though I think #4 sounds credible. These sorts of things are a "define as we go on" sort of thing, reasonable application to craft future guidelines.

But, I'm with Jack Goldsmith and others that this darn thing should be released, with proper redaction if necessary. This coy business of summaries, helped by (semi-official?) anonymous leaks is tiresome.

I'm inclined to accept, being criticized by some who I usually agree with in the process, the legality of the killing. But, we should be able to read this legal analysis. Secret legal analysis was open to abuse in the last administration and can be here.

Sam Rickless said...

#4 seems likely, as Joe says. But, if so (and even if not, frankly), then I don't like the memo; and I haven't even read it. Maybe that's unfair, but I would be shocked if reading it made me change my mind.

The memo strikes me as rationalizing in legalese something that the government wants to do without sufficient justification.

The situation, as I understand it, is this. The government has evidence that an American citizen has plotted, and is plotting, terrorist acts against American civilians and military personnel. Solely on this basis, the government claims that it is justified in killing the American citizen off the battlefield. In the absence of judicial oversight or imprimatur (with someone arguing the case for the targeted American), this strikes me as crazy. Think about other cases: (i) the evidence turns out, unbeknownst to the government, to be false or misleading; (ii) the evidence turns out, unbeknownst to the government, to be overridden by obtainable evidence not in the government's possession. Do we honestly trust a government that insisted at the United Nations that there was compelling evidence of weapons of mass destruction in Iraq to justifiably kill an American citizen in cold blood (assuming he cannot be captured)? Especially in times of hyteria, but even when things are relatively calm, the idea that a government should be granted the power to determine the quality of the evidence that it has gathered to justify the killing of an American citizen stinks to high heaven.

I am not saying that there is no compelling evidence that Anwar Al-Awlaki was planning future terrorist attacks against Americans. I think that there is, and that it is on the basis of this evidence that the U.S. government targeted him for assassination (in the absence of the possibility of capture). But it shouldn't be up to the government to decide how compelling this evidence is. There needs to be a (judicial) check on the power of the executive to order the assassination of Americans who are not actively engaged in combat operations against the United States or its citizens. And memos from the judicial arm of the Executive branch won't do the trick.

Joe said...

I agree with Sam Rickless that a judicial check would be best, though under current law, one doesn't seem to be applied and DC Appeals judges have been loathe to second guess the President even on detention.

Military judgment -- if they act on law of war grounds -- has wide discretion. But, a war is not a blank check. Ron Paul is out there railing against the President, but he helped pass the authorization in 2001 that was basically a blank check w/o more. Lets fill in some details.

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