If you are a member of al-Qaeda, do you gain additional protections from attack if you are also an American citizen? With great feeling, many Americans seem to say yes.
With equal feeling, I say no.
Before I explain, let’s remember that — legally — we are in a state of armed conflict against al-Qaeda, pursuant to the post-9/11 Authorization for Use of Military Force. We are not engaged in a law-enforcement operation. In other words, attacking a member of al-Qaeda is more like attacking a member of the Viet Cong in the aftermath of the Tet Offensive than it is like attacking American member of a Columbian drug cartel. An American who’s drug-running in South America is entitled to all the individualized due process of any citizen and certainly cannot be summarily killed by drone strike. An American member of al-Qaeda is, by contrast, is in a state of open and declared warfare against the United States, a state of war acknowledged by both parties to the conflict.
Legal debates surrounding the war center, ultimately, around starting assumptions. For years, the war’s domestic legal critics have been pushing the law-enforcement paradigm (Israel faces the same challenges when countering Hamas and Hezbollah). Indeed, even our allies in Afghanistan have placed law-enforcement-style restrictions on their soldiers deployed in the field. The United States, through two administrations, has resisted this new and dangerous legal argument. Rather, two administrations (empowered by an Act of Congress) have recognized that when facing an enemy with the demonstrated capability of inflicting more civilian casualties on American soil than Hitler or Tojo ever could, we are waging war, not deploying a police force.
When waging war, the “due process” that allows the United States to unleash its military on its enemies is not an individualized process; it is the Act of Congress commencing hostilities (with the understanding, of course, that the inherent right of self-defense applies even before Congress can act). Following this congressional action, the conduct of hostilities — including the identification and selection of targets — is a military responsibility under the civilian supervision of the president and the secretary of defense. When waging war, the military can kill our enemies face-to-face in battle, while they sleep in their barracks or encampments, and even when they run away in fear. The deadly force stops when our enemies are hors de combat — for example, incapacitated by wounds or evidencing a clear intent to surrender. Attacking and killing the enemy isn’t assassination; it’s combat.
The intelligence and targeting challenge presented by our enemy’s systematic violation of the laws of war — by hiding amongst civilians, refusing to wear uniforms, etc. — is exactly the same regardless of whether the target is an American or Pakistani or Iraqi. In prior wars, American forces have reacted to targeting challenges not with greater restraint, but with greater firepower — for example, one of the reasons for the firebombing of Japanese cities was the decision by Japanese leaders to disperse key manufacturing facilities across urban areas, rendering European-style daylight bombing raids essentially fruitless. We were faced with the terrible choice between area bombing and leaving much of the enemy’s war machine essentially unmolested — in the midst of an existential struggle for our existence. We chose area bombing.
In the current war, we go to great lengths to avoid targeting the wrong individual (when I was in Iraq, our targeting decisions were typically based on multiple, overlapping pieces of intelligence). Killing the enemy while sparing civilians is sound counterinsurgency, and it is sound morally. But when civilians do die, the responsibility for their deaths lies with the enemy that unlawfully used them as human shields.
If all this sounds harsh, or “chilling,” or scary, that’s because it is. War is hell. And there is no constitutional doctrine that exempts American citizens from that hell when they choose to wage war against their own country. Any other legal doctrine will create yet another perverse terrorist incentive: Can an American terrorist now be a unique human shield to prevent direct attack? An American al-Qaeda member would suddenly become the most deadly and dangerous of terrorists — enjoying unique legal protections not enjoyed by, say, Americans who wore German uniforms in World War II.
Ironically enough (given the outrage), the Obama-administration memo actually restricts the targeting process beyond that which the law requires. By qualifying and limiting the right to kill American members of al-Qaeda (the very organization that committed the 9/11 attack) to those circumstances where the target is relatively senior, the threat is imminent (though that is broadly defined), and capture is infeasible, the administration has restricted the conventional and lawful targeting process, which can (and should) treat such targets simply as members of al-Qaeda — not as Americans. UPDATE: To be clear, this restriction appears to be a policy choice. The memo defends that policy choice as lawful but does not purport to describe the theoretical legal limits of targeting policy.
Finally, under current law, an American can lose their citizenship if they enter or serve “in the armed forces of a foreign state engaged in hostilities against the U.S.” Given the nature of our current struggle, perhaps it’s time to amend the law to strip citizenship from those who enter or serve any armed force (state or nonstate) engaged in armed conflict (as designated by Act of Congress) against our nation.