I’m glad the editors have re-posted the NR articles from last fall by Kevin Williamson and Andy McCarthy (on the homepage here and here) about the targeting of citizens like Anwar al-Awlaki by our military. I am entirely on Andy’s side–and the editors’–about this matter. As Michael Stokes Paulsen noted recently at Public Discourse (writing before the al-Awlaki operation), the Authorization for the Use of Military Force passed by the Congress in September 2001 is to all intents and purposes a declaration of war. And a sweeping one it is, without restriction as to the states, organizations, or persons who may legitimately become the targets of U.S. military force. As Paulsen wrote: “It is a war on a network, or web, of interconnected, supportive persons, groups, and nations. It is a war on al Qaeda and its allies and affiliates and on any and all nations and groups that support them.”
There is no question that the president made a legitimate determination of al-Awlaki’s status as an enemy of the United States under the AUMF. Kevin Williamson, Ron Paul, and the ACLU would have us believe that there was something shocking or anti-constitutional about the president’s unilateral decision in this matter (although “unilateral” is perhaps not an apt description for action the Congress has expressly authorized). A lot of the heavy going has to do with al-Awlaki’s status as a U.S. citizen. Andy and others are right to note that the Supreme Court, in Ex parte Quirin (1942), unanimously held that a Nazi saboteur, born in the U.S. and still holding citizenship, could be treated just like his fellow saboteurs who were German nationals. But the Quirin case also took up, as a far more important issue, whether all the captured saboteurs, both the Germans and the American, had been provided with due process by military tribunals. The justices concluded that they had. In other words, the Court considered whether a citizen fighting for our enemy in wartime is legally entitled to better or different treatment than the alien enemy, and concluded the answer was no. But it also considered whether any captured belligerents could be tried for war crimes by military commissions, or whether the Constitution required the employment of civilian courts and all the trappings of jury trials and criminal procedure–and again, the decision was unanimously in favor of the legitimacy of military commissions. 90% of the Court’s attention was on this matter, in which the citizenship of the captured enemy belligerents was quite irrelevant.
And rightly so, for the Fifth Amendment guarantees due process (and other provisions of the Fifth and Sixth Amendments likewise guarantee other criminal-procedural rights) to all persons, not just to U.S. citizens. Nobody gets more rights in an American courtroom, as a criminal defendant, by virtue of his American citizenship. By parity of reasoning, nobody who fights on the enemy’s side in a war against America gets more consideration under the laws of war by virtue of his American citizenship. (He might, indeed, find himself subject to greater jeopardy because citizens, uniquely, are subject to the law of treason–but with that greater jeopardy comes a special set of safeguards too. For a fascinating case involving the nexus of citizenship and treason, see Kawakita v. United States, 1952.)
Also by parity of reasoning, therefore, if an American citizen on a foreign battlefield, targeted by U.S. military force, were entitled to something called “due process,” some adjudication or other of his “guilt” as an enemy, before that force was applied–which is explicitly or implicitly the argument of Williamson, Paul, et al.–then this would be true of everyone else we target, alien as well as citizen. Then U.S. forces, whether remotely targeting drone-fired missiles, or aiming infantry small arms at enemies on the battlefield, would be legally disentitled to employ force against anyone (or at least against anyone not at that precise moment undertaking a direct attack prompting self-defense) without prior determination, by a competent legal authority, of his guilt for some offense or other that would justify classifying him as an enemy. The Williamson-Paul-ACLU view is handily self-refuting.
American armed forces at war, whether girded for battle in the high desert of Afghanistan or comfortably sitting in stateside air conditioning while programming Hellfire missiles on Predator drones, have the job of either capturing or killing the enemy on the battlefield. Due process, if only of a minimal kind in military commissions, is something we owe to those whom we’ve captured and decide to charge with offenses against the laws of war. (If they are lawful combatants committing no such offenses, they get full-scale Geneva POW treatment.) If we decide it is more militarily sensible or safe to kill them instead of capturing them–a legitimate decision of commanders–the question of due process doesn’t even enter the discussion. And if due process doesn’t emerge on the horizon, it is hard to see how citizen status does.