Mike Dreyfuss, My Fellow Americans, We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens Abroad, 65 Vand. L. Rev. 249 (2012).  Because . . .

This Note has shown that a program of targeted killing of U.S. citizens could be  lawful under certain circumstances. Specifically, I propose a system where  the targeted citizen  receives notice and an opportunity for a hearing followed by a JAG determination of his decision not to avail himself of further process and  of  his permissibility as a military target. This would balance the target’s interest in his life against the threat he poses to the lives of his fellow Americans. When we must, we will kill our fellow American before he can kill us.

26 Responses to “Interesting reading . . .”

  1. Lieber says:

    Weird.  If the subject is a proper military target (pursuant to the 2001 AUMF or other legal authorization) than notice would not be required.  If he is not a military target than under what basis would targeted killing be lawful?

    The entire defense of killing Alawki et al relies upon them being military targets.  Remove that rationale and you really do have a problem.

  2. JWS says:

    Lawyers practicing war — pretty dumb.  I await the wrongful death suit, the first issue being whether decedent was in fact properly served.  The second is the determination is made by a low level executive branch official, not a judge.

  3. Lieber says:

    Well, if the death occurs in a foreign jurisdiction (absent some other legal agreement with the U.S.), of which the decedent was an inhabitant (regardless of citizenship), and the death was caused by U.S. military forces, then presumably the FCA would apply.  If the decedent was a U.S. citizen and not an inhabitant in the country where he met his demise, then presumably the MCA would apply.  No lawsuit possible.  (And the claim would almost certainly be denied under the combat exclusion.)  (If the death was caused by an OGA than that might alter the analysis.)

  4. stewie says:

    I think it’s at least fair to inquire as to the legality of whether or not we can simply summarily kill American citizens, even if overseas, even if aiding the enemy.

    Now after inquiry, the answer might very well be, yes, we can; however, I don’t think it “lawyers practicing war–pretty dumb” to do so. War has rules, and laws. So yeah, lawyers are involved.

  5. N says:

    I’m with Stewie, I think that any time we’re knowingly targeting an American citizen, we should at least discuss what, if any, due process should be afforded.

  6. Mike "No Man" Navarre says:

    Links to far more informed analysis of this subject can be found from us here and from Lawfare here, here and well lots of places.

  7. Charlie Gittins says:

    I don’t claim to be an expert in the execution of US citizens, but as an educated American, I am troubled by the thought that some idiot in the Executive Branch, can tell the President, while I am traveling overseas, that I may be a terrorist and I should be the subject of extreme unction and then I am targeted by a Maverick missile.  There will be no court hearing; no warrant; no judicial review and no retribution.  To tell you the truth, not one of the guys who is running for President on either side would I trust to make that decision.  Obama doesn’t have an intelligent thought that is not contained on a teleprompter and the rest are equally pretenders or mentally challenged.  I am thinking it may be time to re-think the Feres doctrine so that families of those unlawfully targeted can have their day in court. 

  8. Just Sayin' says:

    The JAG Corps can protect individual rights better than the federal judiciary?
    I know a few people who have been put through bogus, politically motivated “professional responsibility” complaints who would disagree vehemently with this statement.
    As to the rest of the article, the author is naive, and fails to adequately discuss the problem of using military force outside a declared theater of combat.

  9. Charlie Gittins says:

    Indeed, Just Sayin . . . .  Turns out that Captain Rex Guinn, who was relieved in Japan as CO of the RLSO was cleared of any PR violations — but only after he had been relieved.  Ready, fire, aim.  Typical JAG Corps.
     

  10. Just Sayin' says:

    I believe the other JAGs who went down with the RLSO VWAP scapegoating FLAILEX were also all cleared, but not after significant and irreparable damage to their reputations and careers. 

    Also, I believe the sequence is actually Fire, aim, ready.

  11. stewie says:

    Mr. Gittins, it must be tough always being the smartest man in the room.

  12. Just Sayin' says:

    in fairness, Stweie,

    around the current crop of nominees, that’s like being the tallest midget at the carnival.

  13. JWS says:

    Col Gittins is right, as usual.  And I am sure the Framers thought they were clearly depriving the executive of the power to summarily execute people — even the crown could not do that in the 18th Century.  That said, the article is naive — which gave rise to my comment.
    Just what is the limiting principle?  If a Marine encounters an enemy on the battlefield, do we now have a due process issue?  A SEAL encounters a bad guy on a rescue mission who turns out to be a citizen?
    And I am not kidding about the litigation.  If we grant the due process rights (I’m with y’all on this), then the bad guys will say decedent did not get personal service & here comes the wrongful death suit.
    The article calls to mind my Dad’s admonition: “You will get to know your client’s vocabulary and it will be easy to think you know his or her profession.  Do not mistake vocabulary for real knowledge.”  The author knows the vocabulary of war, but does not know war.
    As for the current contenders, Col Gittins is spot on.  Did y’all see the New Yorker piece on how the Prez makes decisions?

  14. Mike "No Man" Navarre says:

    Gents–

    The author has a particular background that suggests litigation as a method for resolving such issues, right or wrong as that method may be.  Also, I found a wonderful reading list on this topic that covers the full spectrum of informed opinions from an Apr. 2011 conference addressiing the issue, here.

  15. JWS says:

    The author has a particular background that suggests litigation as a method for resolving such issues

     
    Mike:
     
    When you retire, I would happily recommend you to the State Department.  You have the makings of great diplomat.
     
    And you make the real point: this is indeed a problem and can only get worse.  But we do not yet know how to solve it.  Litigation is not the answer.  Summary assassination — especially in secret — will be the end of the Constitution and our liberty.
     
    Since WW2 Congress has avoided declarations of war.  Why?  Where in the Constitution does it say a declaration of war must only be against an established political entity?  Why, e.g., cannot Congress just declare war on al Queda & all its adherents?  Would that be the notice we seek?  Just an idea.
     
    Thought experiment: Would George Washington have been justified in sending an assassin to kill Benedict Arnold?  Arnold was a threat: he was given an important command by the British & was a proven combat leader.

  16. stewie says:

    Except GW didn’t send an assassin. And just like he did with MAJ Andre, he likely would have…wait for it…”litigated” it with a trial for treason.

  17. JWS says:

    GW didn’t send an assassin because he did not have the intel to make it work.  Maj. Andre was captured by “irregulars” & handed over to GW.  No one, I don’t think, is talking about summary execution of people already in custody.

  18. stewie says:

    There is no evidence that I’m aware of that GW ever considered sending assassins unless you have a link that puports to show otherwise?

    He spent several years after the war in Canada (Newfoundland) as a businessman, so I doubt he was that hard to find.

  19. JWS says:

    I fear you miss my point.  I do not know if GW ever contemplated such an action & I can think of a host of policy & practical reasons why he would not.  The notion was proposed as a thought experiment.
     
    Perhaps another example: at the Battle of the Bulge, the Germans had a battalion or so of soldiers dressed as US MP’s.  Detachments were infiltrated behind US lines with orders to take control of road intersections — like MP’s do –and misdirect US reinforcements.  They were all fluent in American vernacular & purportedly a number were American citizens.  Those captured were shot within 24 hrs & I do not believe they even bothered with a court martial.
     
    Again, I can’t see where to draw the line. 

  20. stewie says:

    The problem with your second example is:

    a. purportedly is a lot different than proven

    b. we executed our own soldiers with summary trials, if that, all of the time back then

    I suspect they didn’t do any real work to determine if they were American citizens, as it would be difficult and timely to suss out who were actually American citizens and who were Germans claiming to be (assuming they all knew who the baseball stars of the time were).

    I think the line is fairly clear. You probably shouldn’t summarily execute American citizens without any due process at all. What level of due process is required in extreme cases like these can be debated of course.

  21. Lieber says:

    JWS,

    Actually, Congress has used AUMFs in lieu of Declarations of War since 1798.  There’s nothing new about it and over 200 years of precedent says that they’re fine.  As far as I can tell, the only legal difference between an AUMF and a Declaration of War is that Declarations allow the use of certain domestic standby authorities (i.e. emergency powers) that Authorizations do not.  There’s a CRS report on point if you’re curious.

  22. JWS says:

    … AUMFs in lieu of Declarations of War since 1798

    That’s true — Jefferson & the Barbary Wars (Shores of Tripoli & all that).  I forgot until your comment reminded me.  But that sorta begs the question.  Where does one draw the line?  A Declaration of War is the due process — notice that USA is making war & the enemy (including all who give the enemy aid & comfort) are targets.  Again, just a thought.

     
    b. … we executed our own soldiers with summary trials, if that, all of the time back then

     
    I do not believe that to be true.  I am not a scholar on the subject, but what I know suggests that executions only occurred after general court martial — and there weren’t many of those.

  23. stewie says:

    those “courts-martial” took place on the field so to speak, and were absolutely the definition of summary, as were the executions that followed.

  24. stewie says:

    I should say, many of them did, not all, but by my count, almost 100, and by summarily I should say a couple of months from trial to execution, at most.

  25. JWS says:

    … but what I know suggests that executions only occurred after general court martial — and there weren’t many of those.


    … but by my count, almost 100

     
    Exactly.  There were 16 million men under arms.  How many went ashore with my uncle at Betio 11/20/1943?  How many went ashore on Utah & Omaha Beaches 6/3 1944?  100 capital courts martial?  Not many.
     

    … by summarily I should say a couple of months from trial to execution

     
    OK, we’re lawyers.  Don’t use “summary” & its permutations unless you mean “Summary Court Martial.”  And it dodges the issue.

  26. stewie says:

    well it’s interesting, you started out by arguing that Americans were sometimes executed without a trial/due process (assumedly as evidence of why it might be ok today), then when I pointed out we gave them minimal due process you argue that we really gave them GCMs.
    Not sure there is a difference in the second part, as what we call a GCM today is not necessarily what was going on back then. It was a group of officers, thrown together, no attorneys, certainly not for the defendant, done quickly, in theater, with the execution happening within a couple of months.
    Some due process yes, not much, but some. So, seems like the line would suggest some measure of due process, yes? The question is, how much.