After Anwar al Awlaki, an American citizen, was specifically targeted and killed by a drone strike, serious questions arose regarding the legality and morality of this killing. From a legal standpoint, this sort of targeted killing seems to violate the 5th amendment of the constitution:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
As might be imagined, people have generally taken “due process of law” as requiring the proper involvement of the legal system. One likely reason for this is that the amendment seems to be focused on the judicial rather than the executive aspects of the state. In regards to targeted killings, there is also the concern that such killings involve making a person “answer for a capital, or otherwise infamous crime”. If so, a targeted killing without such an indictment or presentment would violate the constitutional rights of the target.
In response to this sort of reasoning, Eric Holder replied as follows:
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.
While I am not a scholar of constitutional law, the context of the 5th amendment seems to make it rather clear that the due process is, in fact,supposed to be a judicial process. Of course, since it is not worded as “judicial process”, this does open a legal door for interpreting what is meant by “due process.” As Holder sees it, in addition to following due process the killing of an American citizen must meet four principles in order to be legal:
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.
On the face of it, these principles seem rather reasonable in regards to justifying intentional targeting. After all, they boil down to saying that it is okay to target a lawful target that has military value provided that doing so does not cause excessive collateral damage and undue suffering is not inflicted. However, the most important issue of concern here is the matter of due process.
In terms of the legality, that is a matter that must be decided by the courts. As noted above, my view is that due process requires legal proceedings in the context of the judicial branch and that ordering such executions does not fall within the powers of the executive branch. Of course, I am not a legal scholar and hence my view has no weight beyond the effectiveness (or lack thereof) of my argument.
My view does not, I contend, infringe on the president’s role as the commander and chief of the armed forces. If an American citizen is killed in the course of combat because s/he took up arms against American forces, then the citizen was a legitimate target for the armed forces.
However, singling out an American citizen to be targeted and killed is another matter since that seems to be more properly an act of law and not of war. From both a moral and a legal standpoint, there does seem to be a rather important distinction here, namely that between the criminal and the enemy combatant. The mere fact that someone is engaged in activity harmful to the United States (including killing Americans) does not make that person an enemy combatant. Otherwise almost all criminals would be enemy combatants, which would be absurd.
As might be imagined, the stock reply to this view is that we are at war with terror and hence a targeted killing of an American citizen who is involved in terrorism is thus an act of war. By this reasoning, the targeted killing would be an act of war, on par with having a sniper take out a turncoat among the enemy on the field of battle.
While this does have a certain appeal, there is the rather obvious concern that the war on terror is a rather vague sort of war. After all, terrorism tends to blend all too smoothly into the criminal world (and vice versa). This raises legitimate concerns about the standards used to distinguish between those citizens who are enemy combatants and those who are merely criminals. As noted above, just because someone is actively harming America or even killing Americans does not automatically make that person an enemy combatant and thus outside of the normal judicial process. After all, Americans murder each other everyday, yet they are not enemy combatants. Also, having foreign ties to violent groups and engaging in violence because of this does not seem to suffice to make a citizen an enemy combatant. After all, there are and have been American citizens with ties to foreign groups (such as the Mafia and Mexican drug dealers) who have engaged in violence against Americans without being considered enemy combatants.
The stock reply to this sort of reasoning is that terrorists can be distinguished by their goals. Crudely put, while terrorists do often engage in traditionally criminal enterprises (such as the drug trade), they are not in it for the money but for some political or religious goal. In contrast, criminals are in it for the money or for some other non-political or religious goal (like revenge).
While this also has a certain appeal, there are obviously criminals who commit their crimes (such as killing abortion doctors or attacking political figures) based on political or religious motivations. These people can even have ties to foreign groups (such as transnational religious groups) and yet they are not enemy combatants.
The standard reply to this is to bring in that the person must be on foreign soil. While this does have some appeal, this would seem to allow the targeted killing of an American criminal who has fled to another country, such as Mexico, to hang out with his drug dealer allies. As such, it seems rather difficult to make a clear distinction between a criminal and a terrorist that would clearly protect American citizens from being executed by the executive branch. While I will not call for an exact line to be drawn, I will call for more definite standards. I am, not surprisingly, in favor of erring on the side of considering citizens criminals rather than enemy combatants in cases in which the matter is not quite clear.
As I hope is evident, my main concern with Holder’s justification is that it makes it far too easy for the president to order the execution of American citizens without due judicial process. This, I contend, extends the president’s powers in a legally unwarranted and morally dubious manner. As such, the targeted killings of Americans without due judicial process should be regarded as both morally wrong and as a violation of the constitution.