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.