Attorney General Eric Holder Identifies Factors for Targeting Enemy Combatants

In a speech yesterday at Northwestern University Law School Attorney General Eric Holder addressed  a number of legal issues associated with the war against al Qaeda and its allies.  Specifically, he identified the factors that the Executive Branch takes into account in targeting enemy combatants.

The legal issues discussed by Attorney General Holder yesterday all turn upon one basic question: are we at "war" with al Qaeda?   I think it is clear that we are war with Al Qaeda, and that the law of war therefore applies.  I discuss those propositions first, and then turn to a description of Holder's speech.

Are We At War With Al Qaeda?

On February 23, 1998, Osama bin Ladin, the leader of al Qaeda, and the leaders of four other Islamic radical groups, issued a fatwa calling for the indiscriminate killing of all Americans everywhere.  Al Qaeda then carried out a series of attacks against America.  On August 7, 1998, hundreds of people were killed in bombings at U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya.  On October 12, 2000, 17 American sailors were killed and 39 injured when the U.S.S. Cole was subjected to a suicide attack in the port of Aden, Yemen.  On September 11, 2001, 2,977 Americans were killed in the air and on the ground in the four attacks on American soil.  At the time of these attacks al Qaeda was harbored and protected by the Taliban which at that time controlled most of Afghanistan.

On September 18, 2001, Congress enacted the Authorization for Use of Military Force (AUMF) empowering  the President to use "all necessary force" against any nations, organizations, or persons involved in the 9/11 attacks:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The AUMF has the same legal effect as a declaration of war.

The AUMF is not a declaration of war against all terrorist organizations.  The "War on Terrorism" is a metaphor like the "war on drugs" or the "war on poverty."  But as to those nations, organizations, and persons who assisted or carried out the 9/11 attacks we are at war.

The Legal Consequences of the Fact That We At War

The fact that we are at war with al Qaeda, the Taliban, and affiliated groups has several legal ramifications. The active military members of those groups are enemy soldiers who may be taken prisoner or killed wherever they can be found.  Once taken prisoner they may be detained for the duration of the conflict under humane conditions.  If guilty of war crimes they may be tried before a properly constituted military commission.  Those who are guilty of violations of the criminal law may also be tried in civilian court.

Holder's Speech

In his speech Holder assumed that we are at war with al Qaeda and that the law of war applies.  But the thrust of his speech was that in the conduct of this war we must remain faithful to the Constitution and the Rule of Law:

But just as surely as we are a nation at war, we also are a nation of laws and values. Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals. Not only is this the right thing to do – history has shown that it is also the most effective approach we can take in combating those who seek to do us harm.

Holder reviewed several steps that the United States had taken to combat terrorism while protecting the constitutional rights of American citizens.

• Increased and more efficient sharing of information among intelligence and law enforcement agencies;
• Effective use of the criminal justice system and the revised military commissions, both of which are necessary to combat terrorism; and
• The "appropriate and lawful use of lethal force."

It is the third of these that is the subject of this post.

Holder cited three legal authorities for the targeting killings carried out by the Executive Branch:  the AUMF, the United States Constitution, and international law:

In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.

Holder maintained that the United States has the right to target al Qaeda wherever it is located.

We are at war with a stateless enemy, prone to shifting operations from country to country.

He stated that it is "entirely lawful" to target "senior operational leaders" of al Qaeda, and cited an example from World War II:

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

Holder concluded that it was not accurate to refer to these military operations as "assassinations" which are "unlawful killings."

Holder then noted the "unfortunate but undeniable fact" that a small number of American citizens had joined al Qaeda and chosen to mount attacks against the United States, and he cited stated that American citizenship did not confer immunity upon them:

Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.

At this point the Attorney General made a mistake - a common mistake.  He cited the Due Process Clause of the 5th Amendment as protecting the rights of "citizens."  It does not.  The 5th Amendment protects all "persons" from being deprived of life, liberty, or property without due process of law.

The Attorney General properly described the Due Process Clause as requiring a balancing of interests:

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat.

The case Holder was referring to as involving a U.S. citizen captured in the conflict against al Qaeda is Hamdi v. United States (2004).

In the context of targeted killings, Holder described the Due Process Clause as imposing upon the government the duty to balance the rights of American citizens against the need to protect the country from military attack:

Here, the interests on both sides of the scale are extraordinarily weighty. An individual’s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

Holder proceed to identify the factors that the United States takes into account in determining whether to target a U.S. citizen who is a senior operational leader of al Qaeda in a foreign country:

Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

Holder stated that the government need not wait until the last possible moment to deter an attack upon the United States:

Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.

Nor would it be necessary in all circumstances to attempt to capture rather than kill a U.S. citizen who is a senior operational leader of al Qaeda in a foreign country:

Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.

Holder then identified the four principles of the law of war that would govern the use of deadly force:

Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

Holder stated that the four principles governing the use of force did not rule out the use of drones or other technologically advanced weapons.

Holder then addressed the issue that Ron Paul, the A.C.L.U., and others have raised: whether the determination to target an American citizen abroad should be made by a court rather than the executive branch.  Holder conceded that we normally associate "due process" with court proceedings.  On the other hand, he noted that due process also governs proceedings before administrative agencies and military tribunals (Hamdi).  Holder continued:

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history. Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time. The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen. 

The "recent court decision" Holder was referring to was Al Aulaki v. Obama, 727 F.Supp.2d 1 (D.C. 2010).  In that case the District Court did not specifically rule that prior judicial approval for a targeted killing is not required by the Constitution.  Instead, the Court found that the courts lack jurisdiction under the Constitution to decide such a case:

Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims, the Court finds that the political question doctrine bars judicial resolution of this case.

In yesterday's speech Holder agreed that oversight belonged not to the judicial branch, but to the legislative:

That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.

In short, because we are at war, the targeted killing of American citizens who are waging war against the United States is a matter that is conferred to the discretion of the President of the United States as Commander-in-Chief of the military forces of the United States.  The remedy for unlawful killing of American citizens in the course of military action is impeachment by Congress.  

With the exception that I see no legal or constitutional difference between the rights of American citizens and the rights of foreign nationals in this regard, I am in agreement with the analysis offered by the Attorney General.  During time of war as Commander-in-Chief of the military the President not only has the power but has the duty to capture or kill the enemies of the United States. If the President violates the law of war by targeting innocent civilians - whether or not they are U.S. citizens - he or she should be impeached.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.