1

Targeted Killings of Terrorist Suspects:

Valid Tactic in the Global War on Terror or Violation of U.S. Law?

Abstract: Recent news reports indicate that the executive branch is planning to increase the use

of targeted killings of terrorist suspects. Because the most on point arguments to continue

targeted killings come from the Executive interpretation of EO 12,333, and the application of

international conventions and rules of war, the apparent continued use of targeted killings will

likely continue unless Congress creates a legislative assassination ban or forces a more narrow

executive interpretation of the Executive Orders regarding the U.S. use of targeted killings. Until

Congress directly speaks to the topic it appears that targeted killings belong in a gray area

between completely legal and completely illegal under federal law. Additionally, the changes in

due process case law regarding habeas rights are creating shifting interpretations of the rights

afforded to citizens and non-citizens. Further explanation by the court is needed to determine the

due process requirements needed to avoid violation of the constitutional rights of suspects

considered targets for death outside of the typical judicial processes. Based on these rationales,

the policy of targeted killings by the United States government against terrorist suspects around

the world remains of dubious legality.

“[A]ssassination, poison, perjury…all of these were legitimate principles in the dark

ages…but exploded and held in just horror in the 18th

century.”

Thomas Jefferson in a letter to James Madison (1789)

2

Contents Introduction ..................................................................................................................................... 3

Background ..................................................................................................................................... 3

U.S. Domestic Law Approach ........................................................................................................ 7

Executive Order 12,333: Assassination vs. Targeted Self-Defense ........................................... 7 Congressional intent.................................................................................................................... 9

Theater of War Rationale .............................................................................................................. 11

Within the Authorized Theater of Operations or Neutral Countries? ....................................... 11 Constitutional Arguments ............................................................................................................. 15

Due Process Rights for Citizens ............................................................................................... 15

Due Process Rights for Aliens .................................................................................................. 16

Conclusions ................................................................................................................................... 17

3

Introduction

The use of extrajudicial or targeted killings of terrorist suspects by the United States

Government is a controversial tactic used extensively by the George W. Bush administration and

continued by the Barack Obama administration. Such killings involve making a decision about

the guilt of a person and instituting a death sentence without any typical judicial process. U.S.

attacks on suspects in foreign countries that are not currently within an active theater of battle

suggest violations of the laws of war by military and civilian officials. Recent Supreme Court

decisions indicate that foreign suspects may be entitled to increasing constitutional protections.

Additionally, attacks on U.S. citizens would appear to be a direct failure of procedural due

process and trial rights. The thesis of this paper is: Targeted killings as practiced by the United

States Government in non-battle theaters violate American statutory and constitutional rights for

both U.S. citizens and foreign nationals.

Background

Governments have used targeted killings throughout human history to achieve political

and military objectives. Targeted killings include assassinations and differ from normal combat

in that the target is selected in advance based on their identity. Typical warfare involves military

forces fulfilling their objective by fighting opposing forces without regard for the identities of the

enemy soldiers. A targeted killing differs from this because the objective of the operation is to

find a kill a specific soldier. Historic examples of this include specific campaigns to capture or

kill members of royal families.

Since the beginning of the 20th

century diplomats have developed international rules of

warfare beginning with the Hague treaties and cumulating in the additional protocols of the

Geneva Conventions and the United Nation’s Charters, signed by most countries and ratified by

the United States in 1949.1 These treaties usually ban targeted killings of regular soldiers to

avoid subsequent retaliatory attacks. Military leaders are considered to be legitimate targets

1 Michael n. Scmitt, “State Sponsored Assassination in International and Domestic Law,” 17 Yale J. Int’l L. 609,

627 (1992)

4

during wartime, however Article (51) of the United Nations Charter does not allow for murder of

soldiers through “devious means”. 2 For example a soldier on or off duty in a war zone would be

a legitimate target, however a soldier on rest and relaxation in a non-warzone would not be a

legal target. The reasoning behind this is to limit warfare to areas away from civilian populations

or at a minimum provide notice to non-combatants to allow for evacuation.

Modern terrorist tactics often involve attacks in non-combat areas. The purpose of

terrorism is to create a sense of fear in the targeted population in order to achieve a particular

political aim3. When a terrorist succeeds in instilling a belief in the populace that their

government is unable to protect them, they win a psychological victory over their enemy which

can create a backlash and result in ultimate victory. This is one reason that asymmetric warfare is

often a successful tactic. The ability of terrorists to strike nearly anywhere with impunity gives

them an edge over the less agile traditional police and military forces.

Additionally, terrorists rarely have established rules of engagement and by definition are

violating international rules of warfare. Traditional military forces are constrained by rules and

policies that limit their ability to combat an enemy that often can camouflage themselves

amongst civilians. Because of the ineffective nature of modern military tactics, including the use

of overwhelming force and heavy firepower against such adversaries, some nations have

developed tactics to combat terrorists with less orthodox techniques.

Targeted or extrajudicial killings are a technique where the location of a known terrorist

is determined through intelligence gathering and agents are authorized by their government to

kill the suspect. Often such targeted killings occur in a third-party country where the country is

unwilling to capture and extradite the suspect to the targeting nation. In most cases such a killing

without some judicial process qualifies as pre-meditated murder and is illegal. Some countries

that engage in targeted killings do engage in some process such as a trial in absentia with a

verdict of guilty, however most countries believe their sovereignty over judicial matters prohibits

the sanctioned killing of a person within their territory.4 For this reason these killings are often

2 Amos Guiora, “Targeted Killing As Self-Defense”, 36 CaseW. Res. J. IL 319, 326 (2004)

3 Michael n. Scmitt, “State Sponsored Assassination in International and Domestic Law,” 17 Yale J. Int’l L. 609,

630 (1992)

4 Amos Guiora, “Targeted Killing As Self-Defense”, 36 CaseW. Res. J. IL 319, 326 (2004)

5

called extrajudicial because they do not use valid jurisdictional process to accomplish their goal.

Some nations even classify foreign agents engaging in such killings as terrorists.

One nation that has widely used the tactic of targeted killings is Israel. Due to the near

continuous terrorist attacks on their nation and the ability of terrorist suspects to disappear into

the civilian populace of the occupied territories, the Israeli government uses targeted killings of

identified terrorist leaders to create chaos and fear among anti-Israeli terrorist organizations.

Often these attacks occur in the occupied Palestinian territories and involve missile or

precision bombing attacks utilizing aircraft and helicopters of the Israeli Air Forces.5 These

attacks are often within what Israel considers its jurisdictional sphere so the international

community is often more willing to accept such attacks as not violating a neutral nation’s

sovereignty. Several examples of more clandestine operations in third party nations by Israeli

agents exist.

Following the terrorist massacre of 11 Israeli athletes at the 1972 Summer Olympics,

Israeli president, Golda Meir authorized undercover teams to operate internationally to capture or

kill Palestinian and Arab individuals suspected of contributing to the plot. 6 Several suspected

terrorists were killed by teams in Western European and Middle Eastern nations resulting in

condemnations of the Israeli Government by the international community. Such criticisms,

however, have not altered the Israeli Government’s belief in the effectiveness of the technique in

disrupting terrorist organizations and operations.

The United States Government, in response to terrorist attacks on its citizens, has also

developed extrajudicial targeted killing tactics to disrupt command and control of enemy terrorist

organizations. One favored method is the use of precision guided munitions mounted on

unmanned aerial vehicles such as the predator drone. These often high flying, and nearly

impossible to observe, weapons platforms are capable of loitering over the homes or meeting

places of terrorist suspects and allow the real-time identification of suspects due to sophisticated

reconnaissance cameras.

5 Robert Nordland, “Sound and Fury in Gaza”,Newsweek March, 2009

6 Amos Guiora, “Targeted Killing As Self-Defense”, 36 Case W. Res. J. IL 319, 326 (2004)

6

Predator drone missile attacks have been used in both the Iraqi and Afghan theaters of

battle to target enemy combatants.7 Such attacks are arguably legal combat operations due to

American military involvement in these active theaters of battle. Such attacks, although possibly

in violation of the spirit of the Hague IV convention’s ban on deceptive tactics in warfare,8are

widely approved of by the American public and are easily defended as justified targets in an

active war zone. Some attacks, however have occurred on presumably neutral nation’s territory

and have resulted in accidental civilian deaths.9 Attacks on suspected terrorist in Pakistan and

Yemen, which are not within the declared battlefield, present a more difficult argument for the

use of such tactics as justifiable military targeting of terrorist suspects. Additionally, the concept

of the chase of terrorist suspects into neutral countries and the proportionality of such retaliations

also play a role.

The death of an American citizen in a Yemeni predator drone attack raises additional

issues of due process rights afforded to citizens against their government.10

The recent expansion

of constitutional due process rights to non-citizen detainees in U.S. Custody further clouds the

issue of the legality of targeting foreign terrorist suspects using extrajudicial lethal force.

This paper will discuss several aspects of the U.S government’s use of targeted killings

since the September 11, 2001 attacks and will consider the legality of such methods under U.S

statutory and constitutional law. The paper will further differentiate between U.S. citizen and

foreign citizen rights under the constitution and the difference of attacks in active theaters of

battle versus neutral third countries.

7 Eric Schmitt, Christopher Drew, “U.S. to Increase Drone Strikes on Rebels, Pakistani Officials Oppose Plans,”

International Herald Tribune, April 8, 2009

8 Guiora, “Targeted Killing As Self-Defense”, 36 CaseW. Res. J. IL 319, 334 (2004)

9Sami Yousafzai and Mark Hosenball ”Predators on the Hunt in Pakistan” Newsweek February 9, 2009

10

Heinz Klug,” The Rule of Law, War, or Terror” 2003 Wis. L. Rev. 365, 378 (2003)

7

U.S. Domestic Law Approach

Executive Order 12,333: Assassination vs. Targeted Self-Defense

An assassination is defined as: The act of deliberately killing someone, especially a

public figure, usually for hire or for political reasons.11

Official United States government policy

disfavors assassination. This is partially due to the findings of the congressional Church

Committee hearings during the early 1970’s where congressional leaders investigated U.S.

government assassination attempts on foreign leaders such as Cuba’s Fidel Castro. The

recommendation of the Church Committee was to pass statutory bans on assassinations.

President Gerald Ford, in an attempt to maintain executive control over the issue, instead issued

Executive Order 11095 which banned political assassinations by employees of the U.S.

government. A divided Congress accepted the presidential authority and failed to pass a statutory

ban on assassination. President Jimmy Carter further modified the assassination ban with

executive order 12,036 which removed the modifier political from the word assassination.12

Despite introduction of the exact wording of the Executive order into a congressional bill,

Congress failed to pass the bill into law. President Reagan modified the assassination ban with

executive order 12,333 which remains in effect today. Paragraph 2.11 of EO 12,333 states: “Ban

on Assassination. No person employed by or acting on behalf of the United States government

shall engage in or conspire to engage in assassination.13

Because EO 12,333 does not define

assassination, there is significant debate as to the boundaries of what constitutes a violation of

the ban. The United States does not use the terminology of “targeted killings” in its discussions

of EO 12,333 however it does “target” individuals for self-defense purposes.

The Reagan administration construed the order to limit U.S. government agents from

participating in political murders of specific individuals during peacetime or the treacherous

killing of a specific individual during armed conflict.14

Because the reference to murder would

11

Blacks Legal Dictionary West 2000 p 122.

12

Source: Time to Repeal the Assassination Ban of Executive Order 12,333: A Small Step in Clarifying Current

Law. Military Law Review, 172 Mil L. Rev. 1 ,22 ( 2002)

13 EO 12,333 Para 2.11 3,C.F.R. 200 (1982) reprinted in 50 U.S.C §401 (2000)

14Source: Time to Repeal the Assassination Ban of Executive Order 12,333: A Small Step in Clarifying Current

Law. Military Law Review, 172 Mil L. Rev. 1, 23 (2002)

8

indicate an illegal act whereas targeting an individual on self-defense was not a murder and

therefore not illegal, the order did not apply. 15

This was one of the arguments used by the administration to answer critics of the legality

of the 1986 bombing raid on Libya. Although the United States was not officially at war with

Libya, the bombing raid, in retaliation for a terrorist attack that killed an American soldier in

West Germany, targeted the compound of Libyan leader Muammar Qahdafi and killed his

daughter. The U.S. government called the daughter’s death an unfortunate accident and stated

that Qahdafi was a legitimate target because Libya was sponsoring terrorism and that these acts

did not circumvent Executive Order 12,333 because they did not qualify as assassination

attempts. The Reagan Administration argued the targeting of Qahdafi constituted the use of self-

defense under United Nations Charter Article 51 where a nation is allowed to defend itself if it is

attacked.16

Additionally, the raids seemed to slow Libyan support for terrorism and due to

widespread support by the American public, Congress did not significantly pursue the issue of

the raid’s legitimacy.

The U.S. Executive has continued to use targeted killings as a method of retaliating for

terrorist attacks. During the first Gulf War, President George H.W. Bush issued orders for

bombing command and control centers in Iraq, with the hope that Saddam Hussein would die in

the raids17

. President Bill Clinton continued the use of such attacks in retaliation for the African

Embassy Bombings. Each president has continued to insist that the targeting of individuals in

retaliation for terrorist attacks are not a violation of Executive Order 12,333, but rather the use of

Article 51 self-defense rights.

Since the September 11, 2001 attacks, both the President George W. Bush and the Barack

Obama administrations have relied on the argument that they are exercising their power to order

attacks on suspected terrorists based on the Authorization for Use of Military Force (AUMF).

Under this argument, Executive Order 12,333 does not apply again because this is a

15

Jefferey F. Addicott “Proposal for a New Executive Order on Assassination” 37 U. Rich. L. Rev. 751, 761 (2003)

16

Boyd Johnson III, “ Executive Order 12,333: The Permissibility of an American Assassination of a Foreign

Leader “, 25 Cornell Int’l L. J. 401, 422 (1992)

17

Boyd Johnson III, “ Executive Order 12,333: The Permissibility of an American Assassination of a Foreign

Leader “, 25 Cornell Int’l L. J. 401, 431 (1992)

9

congressional authorized use of the Commander-in-Chief powers during war and therefore the

attacks do not constitute assassinations. However, under the spirit of the Hague IV conventions

on warfare the targeting of combatants in neutral countries would constitute an assassination

even though the use of nearly invisible drone aircraft to deliver unexpected ordinance attacks

would not constitute a “treacherous attack”. 18

Congress has not shown any concerted effort to contradict the executive’s interpretation

of EO 12,333. This raises the question as to what Congress actually intends in regards to targeted

killings and assassination.

Congressional intent

The United States Constitution reserves the right to Congress to declare war. 19

The

constitution also provides that the President shall be the Commander in Chief of the Army and

the Navy.20

In the traditional separation of powers, Congress tells the president when to act

militarily, and the executive acting on that grant of authority commands the military in its tactical

objectives. By not explicitly rejecting the executive’s interpretation of EO 12,333 by adopting

more restrictive laws, it has delegated that power to the executive. As suggested by Justice

Jackson in Youngstown Sheet and Tube, the executive’s power is at its zenith when it acts

pursuant to an act of Congress and is less powerful when Congress does not specifically speak to

the issue. 21

Because the issue of assassinations of foreign leaders involved in terrorism appears

to be widely supported by the American Public, Congress has not spoken directly to the issue to

avoid raising a politically damaging issue. The evidence of congressional intent after the Church

Committee hearings and subsequent executive/legislative “negotiations” to avoid a statutory ban

on assassinations and targeted killings would indicate that the executive has a moderate grant of

legislative power to continue to interpret EO 12,333 as it wishes.

18

Michael n. Scmitt, “State Sponsored Assassination in International and Domestic Law,” 17 Yale J. Int’l L. 609,

632 (1992)

19

U.S. Constitution Art. 1 Sect. 8

20

U.S. Constitution Art. 2 Sect. 2

21

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 610 (1959)

10

Congress, however, has passed laws that discuss the issue tangentially. Because

legislative intent often serves as a basis of interpreting questions of administrative law, in this

case a similar review of related statutes may provide clarification of Congress’s true intent in

regards to the use of assassination or targeted killings.

In Brown and Williamson Tobacco, the U.S. Supreme Court determined that the Food

and Drug Administration (FDA) did not have the ability to regulate cigarettes as a drug delivery

device despite ambiguous statutory language because an unrelated statute regarding tobacco

demonstrated that Congress intended that cigarettes not be regulated as a drug.22

Despite the

usual deference agencies receive in interpreting their enabling statutes the direct statutory

language from an unrelated statute trumped the agency interpretation.

Similarly, Congress has spoken directly to the issue of targeted killings and

assassinations in the Foreign Sovereign Immunity Act (FSIA) and immigration statutes. Under

28 U.S.C. 1332, a foreign sovereign loses its immunity from suit in an American Court if the suit

involves a targeted killing against the plaintiff. 23

The default under FSIA is that a foreign nation

can not be sued unless it gives consent or it fits one of the exceptions in the statute such as

participating in state sponsored extrajudicial killings. Oddly, language inserted into a 2008

defense appropriation bill modified the language to allow an exception of the targeted killing

exception of FSIA for the government of Iraq requiring a modification of 28 U.S.C. §1605

(a)(1). 24

Additionally, if a petitioner for refugee status under 8 U.S.C. §1182 has been

determined to have been involved in assassinations or targeted killings their applications may be

rejected.25

Finally, treatise and international conventions ratified by the U.S. Senate are

considered self-executing federal law. Congress ratified the Convention on the Prevention and

Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents,

which bans assassinations of political figures cabinet level and above. 26

Because of this, critics

argue that the violations of international bans on assassination that the United States is a party to

constitute a body of federal law that prohibits such acts.

22

FDA v. Brown and Williamson Tobacco 529 U.S. 120, 155 (2000) 23

28 U.S.C. 1332 24

PL 110-181, 2008 HR 4986 (122 Stat 3) Section 1083 25

8 U.S.C. §1182 (3)(E)(iii)(II) P10 26

William C Banks, Peter Raven-Hansen “Targeted Killing and Assassination: The U.S. Legal Framework” 37 U.

Rich. L. Rev. 667, 730 (2003)

11

Because of these direct references to assassination and targeted killings it can be argued

that Congress has taken a position opposing extrajudicial killings similar to Brown and Root.

Therefore the president, instead of acting where Congress has been silent on an issue, is acting in

direct contradiction of Congress, and therefore is acting at the minimum of its executive power

based on the Youngstown rationale.

If a citizen’s suit, such as an illegal delegation of powers, could get past justiciability and

standing issues, it might challenge the Executive’s interpretation of Executive Order 12,333

under the Brown and Root analysis. Even a dismissed challenge might alert Congress to this

separation of powers issue and result in less ambiguous statutory language to further clarify the

U.S. Government’s position.

Theater of War Rationale

Within the Authorized Theater of Operations or Neutral Countries?

The American Military operates under prescribed rules of engagement in dealing with

how captured prisoners are to be treated, the legality of targeting a person based on their status,

and the proportionality and adequacy of the force of an attack. These rules are normally adopted

through the signature of treaties such as the Geneva Conventions. Once such treaties are ratified

by the U.S. Senate, they take effect with force of law and are considered self-executing laws.

Therefore, violations of the rules of the Uniform Code of Military Justice or the Revised Service

Field Manuals are considered violations of federal law.

The U.S Army, in its Revised Field Manual in adopting international conventions on

warfare, prohibits the targeting of combatants outside the declared theater of operations.27

This

means that the United States Military can’t conduct operations to attack enemy combatants in

neutral nations outside the existing declared battlefield except in certain circumstances. For

example, if an American soldier saw a high-value enemy soldier while both were vacationing in

a neutral third country, the American soldier would be unable to commit a violent action to kill

the enemy, whereas if both soldiers were within the declared battlefield any act, as long as it was

legal under the accepted conventions of warfare, would be allowed.

27

Boyd M. Johnson, “Executive Order 12,333: The Permissibility of an American Assassination of a Foreign

Leader.” Cornell Int’l L. J. 401, 419 (1992)

12

Military officials do have the discretion to attack suspects just outside of the declared

theater of war if the enemy combatants have just ducked across the border while being pursued

by American forces under the concept of chase. Chase allows the targeting of suspects that have

crossed into a neutral third country in violation of the accepted rules of war. The crossing must

have been recent and in violation of the non-combatant nation’s neutrality. Such rules of

engagement dissuade combatants from using such tactics. However, allowing the targeting of

suspects on neutral territory outside the declared zone of battle does violate the sovereignty of

the neutral nation which can result in diplomatic incidents. The George W. Bush and Barack H.

Obama presidential administrations have argued that predator drone attacks in Pakistan are legal

military tactics based on the accepted rules of war within a theater of battle or in chase of

terrorist suspects. Critics, however, have charged that many such attacks occur many miles from

the border and are not in hot pursuit. Additionally, such attacks often result in violations of

proportionality theory which means the methods of attacking the target are out of proportion to

the necessary force to accomplish the mission. This has often been described as using a cannon

to kill a fly. One such example happened in Damadola, Pakistan where a predator drone attack

on the suspected terrorist leader, Ayman al Zawahiri, at 3:15 in the morning, in a house in a

small village resulted in the deaths of 18 civilians including eight women and children.28

Zawahiri was not harmed in the attack. The attack did not violate military law because civilian

CIA officials controlled the predator drone that made the attack. It could be argued that had an

American Military official controlled the drone during the attack, they would have violated the

army field manual and been in violations of the laws of war. Because the operators were civilians

and therefore only subject to Executive Order 12,333 discussed supra, the attack could be

considered a legal one.

Supporters of attacks outside of active theaters of war argue that the killing of terrorist

suspects in neutral third-party nations is an act of self-defense based on Article 51 of the U.N.

Charter. An analysis of the intent of the peace time interpretation of Article 51 indicates that the

provision would consider an attack outside the theater of war as an attack during peacetime.

28

Katherine M. Royal, “ Burning the Barn to Roast the Pig? Proportionality Concerns in the War on Terror and the

Damadola Incident” 14 Willamette J. Int’l L. and Disp. Resol. 49, 51 (2006)

13

Therefore the act must be scrutinized to determine if it meets the assassination ban requirements

discussed Supra.29

Alternatively the administrations argue that the “War on Terror” is a global wide theater

of war. The use the wording of the Authorization for use of Military Force (AUMF) passed by

Congress after the September 11, 2001 attacks and subsequent appropriation funding bills to

indicate congressional support for this argument. The AUMF does direct the President to use the

“all necessary and appropriate force against nations, organizations or persons associated with the

September 11, 2001 attacks. 30

A narrow reading of the AUMF language would indicate that a

member of al Qaeda or someone who conspired in the September 11 attacks could be targeted

anywhere in the world. A more reasoned approach however would take into account the terms

necessary and appropriate force. Is it necessary and appropriate that upon determining the

whereabouts of an al Qaeda member who is in a neutral third country and has the potential for

capture and trial at some future time to attack to kill him without a trial? Additionally,

intelligence information, unlike trial evidence does not have to be proved beyond a reasonable

doubt. Would such an attack with limited information be “appropriate”? Finally, does the fact

that attacks outside designated theaters of war are not controlled by military officers, but by

civilian government employees not limited to the rules of war, indicate that the AUMF is not the

controlling factor in this analysis. Further evidence of the chaotic application of such policies are

evidenced in a recent Obama Department of Justice clarification that it may request that Pakistan

be added to the declared Afghan theater of operations in response to recent lawsuits requiring

habeas rights for captives captured outside the Afghan Theater but held at Bagrahm air base. 31

Finally, does the AUMF’s usage of necessary and appropriate force result always need in

the killing of terrorist suspects? Constitutional ideas of 4th

amendment reasonable seizure

indicate that not all situations in law enforcement authorize the use of deadly force. In the 1985

U.S. Supreme Court case Tennessee v. Memphis Police Department, Justice White delivered the

opinion of the court that the shooting of an unarmed escaped convict who was at the moment of

his death not a threat to officers or innocent civilians was not justified ad reasonable under the 4th

29

Heinz Klug, “The Rule of Law, War or Terror,” 2003 Wis. L. Rev. 365, 372 (2003)

30

AUMF as referenced in Rumsfeld v. Hamdi, 542 U.S. 507, 518 (2004)

31

Josh Gerstein, DOJ:Court Could Harm Afghan Effort, Politico Online April 12, 2009

14

amendment.32

Could a similar ruling be determined for U.S. Citizen terrorist suspects who are

not currently a threat but who are still targeted for extrajudicial killings? Additionally such

attacks raise the issue of what 5th

amendment due process rights are required for citizens to be

discussed supra. 33

32

Tennessee v. Memphis Police Department 471 U.S. 1 (1986)

33

Rumsfeld v. Hamdi, 542, U.S. 507, 532 (2004)

15

Constitutional Arguments

Due Process Rights for Citizens

In Rumsfeld v. Hamdi, the court agreed that United States citizens captured on the field of

battle as an enemy combatant were due some process to avoid violations of other constitutional

rights such as 6th

amendment speedy trial rights, rights to counsel, and 5th

amendment due

process and equal protection rights. The O’Conner plurality used an alternative approach for

determining the extent of the process from normal criminals arrested and held for crimes. Using

the Mathews v. Eldridge balancing test, O’Conner created a new rationale for determining the

constitutional rights of citizens detained as enemy combatants. Weighing such factors as the

compelling needs off the state in time of war versus the interest of a detainee if he or she is held

erroneously versus the probable value and costs of alternative process safeguards the O’Conner

plurality created a new calculus as compared to Scalia’s argument that such a citizen should be

immediately tried for treason instead of getting an untested process that comes from a social

security benefit entitlement case.34

Justice Thomas’s concurrence, however, raised the issue in

this paper. When a U.S. Citizen is targeted, whether knowingly or not, in a predator missile

attack, such as one that occurred in 2002, the plurality opinion could result in a due process

finding that could result in a failure to target high value terrorist suspects.35

Such a hesitation

happened in October of 2001 when a jeep carrying Taliban Leader Mullah Omar was identified,

but a military lawyer advised against attacking the convey because of concerns over the legality

of such an attack and the opportunity to remove a notorious supporter of al Qaeda was missed. 36

American citizens suspected of committing treasonous acts within a declared war zone

would likely be legitimate targets without a due process hearing as suggested by Justice Thomas

in Hamdi . In a situation outside the declared theater of battle, however, might require a

Hamdi/Mathews balancing analysis. It would also be unlikely that any agent of the government

would be interested in prosecuting such an attack against a citizen. A future ruling that the attack

34

Rumsfeld v. Hamdi, 542, U.S. 507, 532 (2004)

35

Rumsfeld v. Hamdi, 542, U.S. 507, 597 (2004)

36

Heinz Klug, “The Rule of Law, War, or Terror,” 2003 Wis. L. Rev. 365, 377 (2003)

16

violated a constitutional right would increase the fear of lawsuits for wrongful death from the

citizen’s family, especially without the protection of the Alien Torts Statute.37

Under Sosa,

although a cause of action may not be created within the common law in cases of choice of law

torts, the court left open the opportunity for such new causes of action to be found against federal

employees in the event of violation of internationally recognized conventions such as the ones

discussed supra.

Due Process Rights for Aliens

It would seem that an understanding of an alien terrorist suspects rights would be even

more straightforward, but they are not. Although the Verdugo-Urquidez case in 1990 limited 4th

amendment freedom from unreasonable searches and seizures in the case of aliens with no

continuous attachment with the U.S. and whose property was seized in a foreign country, recent

case law indicates that 5th

amendment jurisprudence is not so simple.38

Earlier cases, later limited

to providing illegal aliens with some due process right in deportation hearings, did provide albeit

limited constitutional rights to non-citizens.39

Although the Supreme Court in Johnson v.

Eisentrager afforded aliens some 5th

amendment rights it limited them to those aliens who had

established an identity within the jurisdiction.40

Other recent Supreme Court cases involving

alien combatants held in U.S. custody further indicate that the government is affording detainees

of additional due process rights including the application of the Writ of Habeas Corpus on Alien

Combatants.41

Although the court distinguished the cases from the holding in Eisentrager where

the court did not provide additional rights, the dissents in many of the cases referenced the fact

that the Executive had relied on the established precedent of Eisentrager’s refusal to expand

constitutional rights to Aliens.42

Additionally, Justice Murphy’s eloquent dissent regarding the

37

Sosa v. Alvarez-Machain, 542 U.S. 692, 723 (2002)

38

United States v. Verdugo-Urquidez, 494 U.S. 259, 278 (1990)

39

INS v. Lopez Mendoza, 468 U.S. 1032, 1037 (1985)

40

Johnson v. Eisentrager, 339 U.S. 763, 764 (1950)

41

Boumediene v. U.S. 128 S. Ct. 2229 (2008)

42

Boumediene v. U.S. 128 S. Ct. 2229 (2008) (Roberts Dissent)

17

application of 5th

Amendment Due Process to all people, not just citizens seems to have presaged

the current arguments in the courts. 43

Recent lower rulings have also questioned whether the

court is maintaining its adherence to Eisentrager.44

The continued distinguishing of current cases

from the established precedent suggests a possible future change of direction of the court as to

the constitutional rights of non-citizen aliens.

Conclusions

The increasing use of targeted killings by the United States government appears to violate

U.S. domestic law. The executive’s flexible ability to interpret the meaning of assassination

under Executive Order 12,333 indicates that the Order is no longer accomplishing the goal of the

Church Committee recommendations of ending the use of assassination as a tool by the CIA to

result in regime change. The use of changes to the executive orders as a negotiation tool to avoid

congressional legislation indicates that the executive wishes to keep assassination as a tool of

executive power and is willing to stretch arguments to continue to maintain the power. Both the

George W. Bush and the Barack Obama administration have increased the use of targeted

killings. The most recent military spending budget for the 2010 biennium, while having billions

in dollars in program cuts, has an increase of $50 billion for predator drone purchases. This

indicates a willingness by the executive to increase the use of targeted killings.

The lack of coherent congressional intent to ban the practice of assassinations indicates a

reluctance in Congress to take the tool of assassination away from the executive. This may be

because successful targeted killings of Al Qaeda suspects have been popular with the American

public. Congress is unlikely to wish to be considered weak on terror and allowing the executive

to make the decision on whether to kill a target allows a deflection in blame if a raid goes wrong.

The use of legislative history on tangential matters, however, can be used to determine

the intent of congress. Using the logic in Brown and Root Tobaco, Congress’s willingness to ban

assassination in other contexts such as the Foreign Sovereign Immunity Act and immigration

isues could indicate that Congress is in favor of banning state sponsored targeted killings.

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In Re Yamashita 327 U.S. 1 (1946) (Murphy’s dissent)

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Al Maqaley et al v Robert Gates U.S. District Court for the District of Columbia, Memoriam opinion (2009)

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A citizen lawsuit that could get past a justiciability challenge and any political question

challenges might be able to force the executive to alter its interpretation of the executive order

based on an illegal delegation of powers argument. An argument based on Justice Jackson’s

concurrence in Yougnstown Sheet and Tube would indicate that the executive is operating at the

minimum level of power and that Congress has not authorized targeted killings. Additionally,

since Congress has spoken to the issue indirectly, it is possible that any discussion of

interpretation of the AUMF would need to consider congressional intent to continue with the

targeted killing programs. Such arguments might spur Congress to explicitly explain its position

on targeted killings and therefore allow for a possible explicit assassination ban or at minimum a

more narrow interpretation of Executive Order 12,333.

The Executive argument that the AUMF established congressional intent to allow all

necessary means to capture or kill al Qaeda members also needs review as to both geographic

distribution of such authorization and the constitutionality and proportionality of such attacks. In

determining geographic scope, the military is only allowed to operate in declared theaters of

battle but several of the reported targeted killings have occurred outside the declared battle

zones. Additionally, the use of civilian CIA crews for these missions indicates that the executive

is aware that such attacks outside the declared battle theaters may be in violation of the law of

war. The Obama Department of Justice opinion that the afghan theater should be expanded to

include Pakistan also indicates that the executive realizes that such killings are located in a gray

legal area.

The interpretation of the AUMF terms necessary and appropriate techniques should also

be considered within a context of a violation of 4th

amendment unreasonable search and seizure

rights. U.S. caselaw would suggest that the killing of a suspect that is not creating an imminent

threat might not be a reasonable suspect for killing in self-defense. Such killings of both foreign

and American citizen will likely result in wrongful death statutes. The insertion of an exception

of the Foreign Soveriegn Immunity Act for the Iraqi government again would indicate the gray

area that the executive knows that targeting killing resides in.

Finally, changes in due process case law based on habeus rights for both citizen and alien

combatants may indicate that a targeted killing could violate a suspect’s 5th

amendment due

process rights. Although the courts have distinguished all of the cases from Eisentrager, the

precedent set by giving additional due process rights in the context of habeus rights would

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indicate that similar cases as to the deprivation of life might be also afford both citizens and non-

citizen’s additional due process rights.

Based on the above issues it appears that targeted killings belong in a gray area between

completely legal and completely illegal. Because the most on point arguments to continue

targeted killings come from the Executive interpretation of EO 12,333 and the application of

international conventions and rules of war, the apparent continued use of targeted killings will

likely continue unless Congress creates a legislative assassination ban or forces a more narrow

executive interpretation of the Executive Orders regarding the U.S. use of targeted killings.

Additionally, the changes in due process case law are creating shifting interpretations of

the rights afforded to citizens and non-citizens. Further explanation by the court is needed to

determine the due process requirements needed to avoid violation of the constitutional rights of

suspects considered targets for death outside of the typical judicial processes.