A War Like No Other

by Fiss, Owen

  In the context of the First Amendment and its guarantee of freedom of speech, we have learned to judge statutes on their face—on the basis of all their possible applications. Under the so-called overbreadth doctrine, the Court will strike down statutes that arguably may have some constitutionally permissible applications if there are a substantial number of applications that impinge on activities that are concededly constitutionally protected.88 The Court will declare the statute invalid on its face as a way of enlarging the freedom of citizens to participate in those activities that are constitutionally protected. Legislators remain free to prohibit the activities that may be constitutionally unprotected, although they must do so in a way that narrowly targets those activities and thus economizes on the sacrifice of First Amendment freedoms.

  A similar doctrine needs to be recognized in the Fourth Amendment context.89 In the First Amendment context, the overbreadth doctrine was announced as a protection against the chilling effect of a criminal statute. The 2008 act, as well as the original FISA statute, is a grant of authority to the executive, not a criminal statute addressed to the citizenry, and yet such a grant of authority may have the effect of discouraging—or chilling—the exercise of personal liberty, in this instance the liberty to engage in private telephone conversations. Thus, even if Justice Alito’s theory is embraced—even if there are some offenses that are so extraordinary that we may allow the government to investigate them without a warrant—the statute that permits or authorizes such investigative activity must fall when it reaches such a broad category of investigative activity as “foreign intelligence gathering.” The legislators must go back to the drawing board and come up with a statute confined to investigations related to international terrorism. Then and only then will the Supreme Court have reason to decide whether international terrorism is the kind of extraordinary offense that Justice Alito contemplated and whether an investigation of such an offense justifies an abandonment of the traditional warrant requirement of the Fourth Amendment.

  One branch of the principle requiring separation of powers warns against unilateral exercises of executive power. From this perspective, the 2008 statute, compared to President Bush’s Terrorist Surveillance Program, might be seen as a step forward, or maybe a half step. In it, the role of the judiciary is minimized, but Congress nonetheless authorized what Bush had decreed. From the perspective of the Fourth Amendment and the values it seeks to protect, however, the 2008 statute is a step backward because its authorization of warrantless wiretapping is in no way confined to terrorism or to the investigation of any other extraordinary offense. Like much of what has happened during the post–September 11 era, such as the use of military commissions and prolonged, indefinite imprisonment without a trial, the 2008 statute has transformed the exception into the rule. At the moment, the authority to engage in warrantless wiretapping is confined to the process of gathering foreign intelligence, broadly construed. If left unchecked, it will provide the foundation for a similar authority in other realms and thus become, I fear, a new point of departure.

  Prologue to Chapter 10

  Trevor Sutton

  Most of the essays in this volume examine national security policies that originated during the Bush administration and were subsequently extended by President Obama. Although critics of these policies can justifiably blame Obama for prolonging them, it is important to recognize that Obama’s choices were to a significant degree constrained by his predecessor’s actions. Obama may have failed to close Guantánamo, but it was Bush who established the Guantánamo prison in the first place. Obama may have failed to try Khalid Sheikh Mohammed and other accused terrorists in federal court, but it was Bush who propagated the belief that some individuals are too dangerous to be tried by Article III judges and juries. Obama may have failed to investigate and prosecute practices such as “enhanced interrogation” and waterboarding, but it was under Bush that those practices actually occurred.

  The topic of the following essay is different. It concerns an area of government activity for which Bush laid some legal foundation but which Obama transformed into a major component—maybe the central component—of his counterterrorism strategy: the use of targeted killings to eliminate terrorist threats outside a theater of armed combat, typically by drone attack. Bush lifted the twenty-five-year-old ban on assassination in the wake of the September 11 attacks, but for the remainder of his term that power was exercised sparingly (so far as we know). For all the justified criticism that accompanied the Bush administration’s prosecution of the War on Terror, it was chiefly a military campaign, and not one conducted by the CIA. Moreover, away from hot battlefields, al-Qaeda members were less likely to be killed outright than to be apprehended for interrogation and prolonged detention.

  Obama, by contrast, has by some estimates authorized the targeted killing of thousands of individuals, mostly in areas too impractical or politically sensitive to deploy troops, such as Yemen, Somalia, and the tribal areas of Pakistan. The killings have been extensively documented by NGOs and foreign governments, and were widely reported on by both American and international media. So widespread and routine have the killings become that in April 2013 the New York Times referred to a captured son-in-law of Osama bin Laden as having joined “one of the most select groups of the Obama era: high-level terrorist suspects who have been located by the American counterterrorism juggernaut, and who have not been killed.” Despite all this scrutiny, however, the Obama administration has never expressly acknowledged the existence of its targeted-killings program (although it has confirmed some individual strikes).

  This chapter, “The Targeted Killing of Alleged Terrorists,” focuses on the most famous target of Obama’s assassination program other than Osama bin Laden: Anwar al-Aulaqi, the firebrand cleric killed in a drone strike in Yemen on September 30, 2011. Much of al-Aulaqi’s infamy came because he was an American citizen, not because he was an influential member of al-Qaeda or because the government had compelling evidence of his involvement in a terrorist attack. For some, this distinction made al-Aulaqi’s killing—along with the killing of his teenage son several weeks later—distressing in a way that other targeted killings had not been.

  Fiss’s focus on al-Aulaqi does not derive from al-Aulaqi’s American citizenship. To the contrary, “The Targeted Killing of Alleged Terrorists” is adamant that, under the Due Process Clause, a person’s eligibility for assassination should not turn on an accident of birth. Instead, the essay’s main concern is two legal challenges filed by relatives in United States courts: one before the al-Aulaqis’ deaths, the other after. In Fiss’s view, both of these challenges marked a failed opportunity for the judiciary to weigh in on a vital matter of constitutional significance. Not unlike the judicial response to the various legal challenges to extraordinary rendition (discussed in chapter 7, “Torture and Extraordinary Rendition”), the judges in both suits eschewed substantive analysis and dismissed the case on the basis of standing concerns and deference to the political branches.

  The model of judicial review presented in the following pages is rooted in Fiss’s understanding of the role of the Constitution in American society. But it also has a more direct inspiration: the jurisprudence of Aharon Barak, discussed at length in chapter 5, “Law Is Everywhere.” One of Barak’s most controversial—and most celebrated—decisions placed limits on the use of targeted killings by Israeli armed forces. For Fiss, Barak’s insertion of the Israeli judiciary into a sensitive matter of national security demonstrates that fundamental values and public safety can be reconciled. If such a reconciliation is possible in a country like Israel, where the threat of terrorism is an everyday fact, then it should be no less possible in the United States.

  Chapter 10

  THE TARGETED KILLING OF ALLEGED TERRORISTS

  Torture is not an integral part of war, but killing is. A nation at war seeks to kill enemy soldiers as a way of either defending its own soldiers or of vanquishing the enemy. When possible, simple hum
anity requires the military to capture rather than kill enemy soldiers. That option may not be available, however, or it may be achievable only by a maneuver that puts the lives of the nation’s own troops in jeopardy.

  Although the War on Terror announced by President Bush was only an exercise in political rhetoric and devoid of any legal content, the armed pursuit of al-Qaeda during his administration and that of his successor can properly be considered a war—an unusual war because al-Qaeda is a far-flung terrorist organization that operates in secret, but still a war. As such, the United States is entitled to kill individuals fighting on behalf of al-Qaeda who cannot be captured. This has been American policy from the very beginning—since the fall of 2001—but it received dramatic expression on May 2, 2011, when Osama bin Laden, the self-declared leader of al-Qaeda, was killed by a team of Navy SEALs who penetrated his compound in Pakistan in the middle of the night.

  This killing provoked a measure of controversy, but none of it questioned the bedrock principle governing wars—the right to kill enemy soldiers. Some objected to the president’s failure to honor one principle that governed even traditional warfare—capture if you can. Others were provoked by the president’s boast that “justice was done.” Killing bin Laden may have been the only option and thus allowed, but these critics posited that justice—true justice—required a trial and judgment by a court of law. Objections were also raised on behalf of Pakistan, sometimes by Pakistani officials, on the ground that the attack was beyond the theater of armed conflict and constituted an invasion of its sovereign territory. Pakistan had long been viewed as an ally of the United States in the fight against al-Qaeda, and as a result Pakistan’s claim of sovereignty was muted by the suggestion that the mission to capture or kill bin Laden had the implicit approval of that country—in other words, Pakistan would have approved the mission if asked, but it was just too risky to ask.

  In the months following the killing of Osama bin Laden, the news media—perhaps on the basis of leaks from the White House—reported that the United States had plans to target an alleged terrorist named Anwar al-Aulaqi. In contrast to the killing of Osama bin Laden, these reports provoked sharp and prolonged controversy. This controversy did not relate to the issue of sovereignty. At the time, al-Aulaqi was in Yemen, also an ally of the United States in the fight against terrorism, but, unlike Pakistan, Yemen was not especially jealous about the bounds of its territory. Some objected to the fact that al-Aulaqi was outside an active theater of armed conflict. But the principal objection to targeting al-Aulaqi—differentiating it from the case of bin Laden—was that al-Aulaqi was an American citizen and had no ostensible connection to al-Qaeda.

  The press reported that al-Aulaqi had instigated a number of terrorist attacks against the United States—killings by a military officer in Fort Hood, the failed attempt of a passenger on a KLM flight to detonate a bomb as his plane approached Detroit, and the attempt, once again foiled, to send bombs to the United States hidden in printer cartridges. The connection between these acts and al-Qaeda—the organization responsible for the 9/11 attacks and the one with which we are at war—was not at all clear. Al-Aulaqi was the reputed head of a group known as al-Qaeda in the Arabian Peninsula. Aside from the name, however, the links between this organization and the one headed by Osama bin Laden seemed, at least to some in the press, speculative. At the time of the 9/11 attacks, al-Aulaqi was an imam in the United States and used his pulpit to denounce those attacks. In the absence of demonstrated ties between al-Aulaqi, or his organization, and al-Qaeda, targeting him might bring the United States to the threshold of expanding the war against al-Qaeda to any terrorist group that borrowed al-Qaeda’s name and wrapped itself in the mantle of Islam.

  On August 30, 2010, Nasser al-Aulaqi, Anwar’s father, a resident of the United States, filed a suit in the federal district court in Washington, D.C., to prevent the administration from going forward with the alleged plan to kill his son. The defendants were the president, the secretary of defense, and the director of the CIA. They did not admit or deny the existence of a plan to target Anwar al-Aulaqi but challenged the court’s jurisdiction to adjudicate the merits of the suit. In essence, the defendants argued that even if there was such a plan it was not the role of the court to prevent its implementation. On December 7, 2010, the suit was dismissed by the federal judge, John Bates, on this very theory.1 Nine months later, on September 30, 2011, while he was driving on a road in Yemen, Anwar al-Aulaqi was killed in a drone attack launched by the CIA from a base in Saudi Arabia. He was with another American citizen, an associate who was the editor of the English-language online magazine of al-Qaeda in the Arabian Peninsula. The associate was also killed in the attack.

  At first blush, the defendants’ challenge to the jurisdiction of the district court had great appeal, at least in the popular mind. Would the military need to get the prior approval of a court each time it targeted an enemy soldier? Such an arrangement would make the conduct of war a practical impossibility and, at the same time, place an extraordinary strain on the judiciary, requiring it to make judgments far beyond its competence. This reaction to the al-Aulaqi suit, however, misconceived the function of the suit. It was not seeking judicial review of an executive decision to target Anwar al-Aulaqi but—much as Aharon Barak and the Israeli Supreme Court had done in 20052—to have the court formulate and announce the legal standards that should govern the practice of targeting alleged terrorists such as al-Aulaqi. The plaintiff assumed that the standards announced by the court would render the alleged plan to target his son unlawful, and thus lend his son a measure of protection. The motivation behind the suit should not, however, obscure the distinction between the articulation of the governing standards and the consequences that might follow from the proper implementation of those standards. The chief responsibility of the district court was to articulate the standards.

  The Legal Standards

  What should the standards be for targeting suspected terrorists? What might be their source? As an exercise of its treaty-making power, the United States is a party to the United Nations Charter and bound by it. The Charter requires each nation to respect, as a general matter, the territorial sovereignty of other nations. Article 2 of the Charter postulates that the United Nations is based on the “sovereign equality of its Members,” and further declares that all members shall refrain from the “use of force against the territorial integrity or political independence of any state.” Article 2 is no bar to enforcement action authorized by the Security Council. Nor would Article 2 bar the targeted killing by the United States of terrorists within the territory of another state if that state gives, either formally or implicitly, permission to the United States to enter the country for that purpose. The claim of sovereignty also seems hollow if the state is unable—in some gross and systematic way—to suppress terrorist threats aimed at other states. The sovereignty protected by the UN Charter cannot be claimed by a “failed state.”

  A more difficult situation arises, however, where there is no consent and the state is able to suppress the threat but is unwilling to do so. In those cases, the United States might view the state as complicit in the terrorist threat. The United States could then invoke the right of self-defense protected by Article 51 of the UN Charter to justify its invasion of the territory of another state for the purpose of suppressing or eradicating the terrorist threat. The United States relied on such a theory to justify the invasion of Afghanistan in the fall of 2001, when the Afghan government, then controlled by the Taliban, refused to surrender Osama bin Laden and other leaders of al-Qaeda. The right of self-defense protected under Article 51 does not require an attack on the United States to have already occurred, as it did on 9/11. It permits preemptive strikes. The sovereignty of a state hosting a terrorist organization can be violated when that organization threatens the United States and an attack is imminent. Article 51 has generally been construed to allow preemptive but not preventive attacks, and the dividing line between the tw
o is the imminence of the threat.3

  The Constitution declares treaties to be the supreme law of the land, and thus subjects the executive to the requirements of the UN Charter. However, the most enduring constraint on the targeting policy of the executive, and the one most central to our constitutional tradition, arises not from the duty to honor treaties but from the Due Process Clause of the Fifth Amendment. It denies the government the authority to deprive any person of his life, or his liberty, or even his property, without due process of law. At its most basic level, this provision bans summary executions and requires the government to file charges against anyone it seeks to kill and then swiftly place that individual on trial in a court of law. Such a trial serves instrumental ends—to make certain that the individual has engaged in or is about to engage in a crime against the United States. It also seeks to achieve a measure of fairness by placing the burden on the government to substantiate the charges and by providing the accused with an opportunity to defend himself.

  Although the Due Process Clause makes trial the basic norm of the constitutional order and prohibits U.S. officials from depriving any individual of his life without first convicting him of a crime punishable by death, an exception has to be made for the killing that is an integral part of war. The Constitution acknowledges the authority of the United States to engage in a war, and, as I said, the capacity to fight a war necessarily entails the power to kill enemy soldiers on the battlefield. The authority to target suspected terrorists derives from this power, though it may entail, as the killing of Osama bin Laden indicates, a looser or more global conception of the battlefield