Obama's legal netherworld
The president isn't claiming too much power to kill Americans who join al Qaeda -- but too little

US Army/Sgt. Michael J. MacLeod

A U.S. Army paratrooper with the 82nd Airborne Division's 1st Brigade Combat Team fires his M4 carbine at insurgents during a firefight June 30, 2012, in Ghazni Province, Afghanistan. The vehicle he is using for cover is a Mine Resistant Ambush Protected vehicle.

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  • The president isn't claiming too much power to kill Americans who join al Qaeda -- but too little

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Suppose a U.S. military special operations unit came upon an al Qaeda training camp in Africa. It discovers terrorist trainers teaching recruits how to use automatic weapons, improvise explosive devices, and practice suicide attacks and small unit tactics. Though the personnel hail from different nations, reconnaissance suggests that some of them may be Americans.

What should the team do? Under the laws of war, the U.S. military unit can surprise the instructors and recruits with snipers and artillery as well as shooting at closer quarters. But under President Barack Obama's half-hearted approach to terrorism, revealed in Tuesday's leaked Justice Department memo, military units on the ground or drones in the air would have to pause and seek guidance from multiple bureaucrats. Instead of having the traditional authority to kill the enemy and destroy their resources, American soldiers and agents have entered a legal netherworld of Obama's creation. The speed and decisiveness of U.S. counterterrorism operations will suffer, even as the administration withdraws from Iraq and now Afghanistan, and gives up the intelligence networks there.

In place of the clarity of the rules of war, the administration has thrust American soldiers into the three- and four-factor balancing tests that govern police officers walking the beat in downtown New York. For the first time in the history of American arms, presidential advisers will sit and weigh the "due process" rights of enemy soldiers, judge whether they pose an "imminent" threat, or decide if capture "becomes feasible." Due process rights for the enemy, according to the DOJ memo, will require a careful balancing of the "nature and quality of the intrusion" on the enemy's constitutional rights against "the governmental interests." And Attorney General Eric Holder limits the target to "an operational leader continually planning attacks" against the United States.

To be clear, the memo, technically a "white paper," is correct in affirming that the United States is at war with al Qaeda. That conclusion rests on the actions of two presidents over four terms, Congress over the past decade, the Supreme Court, the U.N. Security Council, and NATO. It cannot be seriously disputed -- although some liberal critics cling to the belief that al Qaeda is simply a criminal conspiracy, not a true belligerent, and that only law-enforcement actions, not military ones, may be taken against it. Given that the United States is at war, it follows that it may legitimately use lethal force against enemy combatants, regardless of their nationality.  Enemy soldiers, even when not engaged in active hostilities, are legitimate targets during war. If that is true of enemy soldiers in uniform, it must be true also of al Qaeda operatives, who may not wear uniforms but who are the functional equivalent of regular troops. And just as a U.S. national serving in the German Army in 1944 or the Confederate Army in 1863 could be lawfully targeted and killed, so may a U.S. national performing a military function for al Qaeda.

Despite claims that the president is asserting a radically new and menacing authority, Obama's decision to target al Qaeda operatives who are U.S. nationals is by no means unprecedented. The fact is that American presidents (and state governors) have lawfully deployed military force against citizens in insurrection, rebellion, or war against the United States from the beginning of the nation. In 1787, the very year in which the Constitution was framed, the governor of Massachusetts deployed the state militia to put down Shay's Rebellion. President George Washington personally led federalized militia troops into western Pennsylvania to suppress the Whiskey Rebellion of 1794. President Andrew Jackson threatened to use force against South Carolina in the "nullification crisis" of 1832. During the Civil War, President Abraham Lincoln deployed Union armies and navies against the Confederates who, despite being in rebellion, remained U.S. citizens. President Franklin Roosevelt directed operations against U.S. citizens fighting for Axis forces during the Second World War. President Dwight Eisenhower sent federal troops into Little Rock Arkansas when angry mobs of segregationists threatened to prevent African-American children from attending the city's public schools.

A pattern of congressional legislation reaching back to the early republic reinforces such authority. The Insurrection Act of 1807, which remains in force, authorizes the president in proper circumstances to put down insurrections and rebellions. And Supreme Court decisions are also in accord. In Moyer v. Peabody (1909), the court, speaking through Justice Oliver Wendell Holmes, Jr., ruled that the governor of Colorado had the right and duty to suppress a local insurrection, stating that "he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace."

Where the white paper commits serious error is in positing that the "due process" clause of the Fifth Amendment applies to al Qaeda operatives at large. In Hamdi v. Rumsfeld (2004), the Supreme Court ruled that once suspected enemy combatants had been captured and detained, some measure of "process" was owed to them. But the court's decision applied to enemy combatants only after their capture, but not before it. The distinction makes perfect sense. It would be shocking to give a captured enemy combatant a drumhead trial on charges of committing war crimes and then shoot him moments later. But minutes before being captured, that same enemy combatant would have been a lawful target for lethal fire. Enemies reduced to captivity do not pose anything like the degree of danger of those under arms and at large.

The white paper's assumption that U.S. citizens who are enemy combatants are constitutionally entitled to due process even while engaged in, or available for, hostilities is both gratuitous and in error. It is not compelled by the language of the due process clause, which protects "persons," not "citizens." If the white paper were right in claiming that U.S. nationals in al Qaeda deserved due process rights, then it should logically have concluded that the same was true of Saudis or Yemenis in al Qaeda. Further, the white paper's extension of due process to enemy combatants at large is not dictated by any Supreme Court decision. It also has no basis in the traditional laws of war or state practice. And it carries significant operational disadvantages.

Some liberal critics of the white paper object to the fact that it allows senior executive branch officials to decide who appears on targeting lists, without the possibility of judicial review. That criticism is misplaced for several reasons. First, the Federal District Court correctly held in the Awlaki case that targeting decisions presented a "political question." In other words, the federal courts lacked the competence to decide which targets to select; that difficult assignment called for the specialized expertise of trained military and intelligence personnel, subject to the supervision of their civilian political superiors in the executive branch. Second, there is no basis for the suspicion that executive-branch officials have incentives to target U.S. citizens wantonly, without careful consideration of intelligence information (some of it from on the ground informants) linking them to al Qaeda's war against the United States. They may commit errors, but there is no reason to think that they act in bad faith or for careerist purposes.

The president and his senior advisors are fully entitled to rely on the work of their military and intelligence subordinates. In Scheuer v. Rhodes (1974), a case arising out of the 1970 killings of several Kent State students by the Ohio National Guard, the court wrote:

In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices . . . is virtually infinite. . . . [O]fficials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office. . . . [T]hese officers are entitled to rely on traditional sources for the factual information on which they decide and act.

In short, the white paper is an odd hybrid of sound and unsound analysis. Although it is broadly correct in its conclusions, its account of constitutional law is flawed and its effect on U.S. counterterrorism operations could cause serious damage. In the end, it seems to be driven by the Obama administration's desire to straddle a difficult political issue rather than by a genuine concern for the nation's good.

John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. Robert Delahunty is an associate professor at the University of St. Thomas's School of Law in Minneapolis. Both served in the U.S. Justice Department under President George W. Bush.

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