Targeted Killing & the Constitution

Apropos H.M. Stuart’s most recent “Is This Anything” post, I figured I’d repackage some previously-posted thoughts regarding targeted killing of American citizens into an actual post.

The Due Process Clause of the Fifth Amendment prohibits fedgov from depriving any person of “life, liberty, or property, without due process of law”.  On the basis of this provision alone, it might be argued that targeted killing of US citizens living overseas is unconstitutional, even if said citizens adhere to enemies of the United States, and/or reside de jure or de facto beyond the reach of American law (e.g., in a failed state, or in a country which refuses extradition).  Our only option is to arrest (say) Anwar al-Awlaki and try him for treason (or some other crime), for the Constitution seemingly will not tolerate any other course of action.

Or would it?  There is, after all, precedent for extrajudicial use of military force against US citizens domestically – most prominently, the >100k US citizens extrajudicially killed by the Union Army during the Civil War. Nor was this notion a novel one; Founding-era Militia Acts (*) authorized use of militia to suppress insurrection & execute the laws.  AFAIK, the Constitution does not apply extraterritorially, in areas over which the US exercises neither de jure nor de facto sovereignty.  As such, it strikes me as odd (at best) or absurd (at worst) that US citizens living abroad, who adhere to an enemy organization, possess greater constitutional protections than those living on US soil.

The rationale for resort to military force under Militia Acts was not the fact that those targeted (e.g., Confederates during the Civil War) were easily distinguishable via uniforms (such that judicial review of the status of those targeted wasn’t necessary) (**). Rather, the rationale for using military force/extrajudicial killing in cases of rebellion/insurrection was the inability of judicial system to bring perps to justice (e.g., ‘cuz riots or rebellion closed the courts, and/or were beyond the ability of law-enforcement to handle) (***). This seems analogous to contemporary situations where targeted killing may be used – i.e., against enemies located in areas where arrest is difficult-to-impossible, and targeted killing is the only way of neutralizing them.

It therefore appears me that, while the targeted killing of Anwar al-Awlaki may indeed be “something,” it’s not necessarily an unconstitutional something.

Notes

(*) See, generally, Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 YALE L.J. 149, 159-167 (2004), available at http://www.yalelawjournal.org/images/pdfs/427.pdf.

(**) The logical implication of such a position is that, were the US faced with a guerrilla insurrection, it would be entirely prohibited from using lethal military force against the insurgents w/o first trying them in courts of law.

(***) See Act of May 2, 1792, Ch. 28, § 2, 1 Stat. 264; also 10 U.S.C. § 332.

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