Professor Alford’s essay and closely related article address vital constitutional issues. His article’s description of the origins and purposes of the Bill of Attainder and Treason Clauses of our Constitution is thorough, interesting, and informative. However, Professor Alford’s analysis of the effect of these clauses on current issues surrounding the lethal targeting of U.S. citizens gives inadequate consideration to the context in which such cases, like that involving Anwar al-Awlaqi, potentially arise—a congressionally authorized armed conflict. This inattention detracts from what is an otherwise valuable contribution to law and policy debates surrounding the targeting of U.S. citizens.
This response will briefly show that Supreme Court precedent addressing the rights of citizens properly deemed enemies in armed conflict contradicts Professor Alford’s base claim, namely that the Bill of Attainder and Treason Clauses, for reasons deeply rooted in Anglo-American jurisprudence, necessarily require a judicial adjudication before the executive branch may intentionally kill a citizen. It will then briefly suggest the proper effect of these clauses and the important contribution of Professor Alford’s work to the issue. While I agree with Alford that abdicating judicial review in these matters is an unnecessary and unprecedented expansion of the political question doctrine,[1] I disagree that a prior judicial adjudication is constitutionally required.
Relevant Supreme Court precedent strongly implies that in the context of armed conflict, lethal targeting of U.S. citizens who are part of an enemy army or force in armed conflict with the United States is entirely constitutional if it is otherwise consistent with the laws of war. The Court has both explicitly and implicitly rejected Professor Alford’s position when examining the exercise of war powers other than lethal targeting against citizens properly deemed enemies in an armed conflict.
From the perspective of our courts, the United States is currently engaged in a legislatively authorized armed conflict against a nonstate group known as al Qaeda. In Hamdi v. Rumsfeld, a plurality of the Court found that the Authorization for the Use of Military Force granted the president authority to exercise war powers, including “authority to detain for the duration of the relevant conflict;” such powers are “based on longstanding law-of-war principles.”[2] In Hamdan v. Rumsfeld, the Court readily found an armed conflict to exist with al Qaeda, one governed by applicable conventional and customary laws of war.[3] While these cases involved executive actions initially taken on the battlefields of Afghanistan, they do not limit the executive’s use of war powers to that country. The Court has not yet fully addressed breadth of executive war powers granted by the AUMF, or their use against other non-state, organized armed groups like al Qaeda in the Arabian Peninsula.
Regarding the rights of citizens in armed conflict, the Supreme Court addressed Professor Alford’s position during the Civil War in the Prize Cases.[4] The Court reviewed President Lincoln’s order to blockade Southern ports after the attack on Fort Sumter and the associated capture (and forfeiture as prize of war) of property belonging to citizens of the rebelling states. After finding that a civil war was one clearly subject to the laws of war, and that those laws generally permitted the captures at issue, the Court addressed constitutional issues raised by the litigants.
The appellants contend that the term “enemy” is properly applicable to those only who are subjects or citizens of a foreign State at war with our own. They quote from the pages of the common law, which say, “that persons who wage war against the King may be of two kinds, subjects or citizens. The former are not proper enemies, but rebels and traitors; the latter are those that come properly under the name of enemies.”[5]
The Court also noted that the appellants asserted the “right to claim the protection of the government for their persons and property, and to be treated as loyal citizens, till legally convicted of having renounced their allegiance and made war against the Government by treasonably resisting its laws.”[6] Rejecting these claims, the Court found it “a proposition never doubted, that the belligerent party who claims to be sovereign, may exercise both belligerent and sovereign rights.”[7] It then applied laws of war to determine the rights of these citizens relative to the government.[8] Thus, the Court clearly established that U.S. citizens may constitutionally be made the object of war measures without a prior adjudication of guilt, but only in an armed conflict and when such measures are consistent with the laws of war.[9]
Very recently, a plurality of the Court took the same general approach to the indefinite detention of U.S. citizen Yasser Hamdi, an approach also evident in intervening decisions.[10] This precedent makes Justice Scalia’s dissent in Hamdi advancing Professor Alford’s view all the more curious. Equally curious, though, is that neither Justice Scalia nor the plurality discussed the Prize Cases. Instead, the two opinions focused on disagreement surrounding the territorial applicability of the laws of war to citizens, represented by the Court’s opinions in Ex parte Milligan and Ex parte Quirin.[11]
Given the Court’s longstanding approach (and the complete history of the Civil War), there is no reason in theory to limit the executive’s use of war powers against enemy citizens to the capture of property or indefinite detention. In a genuine armed conflict, the “executive death warrant” to which Professor Alford refers becomes lawful “target identification.” This is not a euphemism for assassination, extrajudicial execution or attainder. In spite of talk about “bringing Osama bin Laden to justice” in the Abbottabad raid, lawful targeting of individuals in the context of an armed conflict does not depend upon their moral blameworthiness.
Although philosophers might cringe at the suggestion, under the laws of war, lethal targeting in armed conflict requires no moral “judgment” or assignment of “guilt” because the attack is not a punishment. In the laws of war, lawful targeting of individuals requires that they either have targetable status, as an operational member of an armed force engaged in the conflict, or engage in targetable conduct, referring primarily to civilians or noncombatants (usually protected from direct attack) who take a direct part in the hostilities of the conflict.[12] Thus, the lethal targeting of a specific individual without prior judicial review—even a citizen—does not necessarily violate the Bill of Attainder, Treason, or Due Process Clauses as long as that individual may properly be targeted under the laws of war. [13]
While Professor Alford did not fully consider the armed conflict context or related precedent, his analysis is an important reminder of the judiciary’s role in preserving the life and liberty interests protected by the Constitution. If armed conflict is an exceptional condition that may relax or eliminate specific constitutional protections in certain circumstances, then the courts must, in cases meeting jurisdictional prerequisites, ensure that those exceptional circumstances actually exist and are not being opportunistically asserted by an overzealous executive.
In the Prize Cases, for example, the Court indicated that the executive action alone might conclusively establish the existence of an armed conflict for the courts.[14] However, closer examination of the Court’s opinion reveals that the Court considered the totality of the circumstances. It rejected the assertion
[t]hat insurgents who have risen in rebellion against their sovereign, expelled her Courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies because they are traitors; and a war levied on the Government by traitors, in order to dismember and destroy it, is not a war because it is an “insurrection.”[15]
But in so doing, it considered the full extent of the rebellion to which President Lincoln responded. It also considered that other governments had declared their neutrality, and that Congress had passed legislation ratifying the president’s actions.[16] In short, in spite of some language in the opinion, the Court did not blindly defer to the executive regarding the existence of an armed conflict between the government and a significant number of its citizens.
Likewise, the Hamdi plurality indicated that they might also reconsider their view on the applicability of the laws of war to the violence between the government and the Taliban or al Qaeda. After finding that Hamdi’s indefinite detention was “clearly and unmistakably authorized” by Congress, they noted,
Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date.[17]
Thus, the Hamdi plurality also signaled that the courts must carefully assess the context in which the executive resorts to war powers, particularly against citizens. This strongly counsels against application of the political question doctrine in these cases.
Professor Alford’s article and essay highlight why the judiciary must not defer to the executive, or to both elected branches acting together, on important matters of context surrounding the lethal targeting of citizens. Even if the judiciary properly defers to the elected branches regarding the existence of armed conflict,[18] a doubtful proposition in many potential cases, it is not precluded from examining—and should feel constitutionally compelled to determine—whether a citizen was properly targeted in any such conflict.
Notes
[1] John C. Dehn & Kevin Jon Heller, Debate: Targeted Killing: The Case of Anwar Al-Aulaqi, 159 U. Pa. L. Rev. PENNumbra 175, 178-80 (2011).
[2] Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).
[3] Hamdan v. Rumsfeld, 548 U.S. 557, 628-32 (2006).
[4] Prize Cases, 67 U.S. 635 (1862).
[5] Id. at 672.
[6] Id.
[7] Id. at 673.
[8] Id. at 674-82.
[9] For fuller explication of the President’s war powers, see John C. Dehn, “The Commander-in-Chief and the Necessities of War: A Conceptual Framework,” Temple L. Rev. (forthcoming 2011).
[10] Ex parte Quirin, 317 U.S. 1 (1942) (as to petitioner Haupt); Juragua Iron Co., Ltd. v. United States, 212 U.S. 297 (1909).
[11] Hamdi, 542 U.S. at 522-525.
[12] Dehn & Heller, supra note 1, at 191-2.
[13] In my view, whether the war power is exercised territorially or extraterritorially is also relevant to the constitutional analysis, particularly when discussing citizens who are not members of an enemy armed force. The available space here is simply insufficient to address this aspect of the topic.
[14] Prize Cases, 67 U.S. at 670, “Whether the President in fulfilling his duties, as Commander in-chief … has met with such armed hostile resistance … as will compel him to accord to them the character of belligerents, is a question to be decided by him … .”
[15] Id.
[16] Id. at 669-71.
[17] Hamdi, 542 U.S. at 521, emphasis added.
[18] See, for example, id. at 588 (Thomas, J. concurring)(citing precedent suggesting this approach)