That ‘Lethal Operation’ White Paper: Under-Inclusive, Over-Solicitous, and Misguided

The recent leak to NBC News of a Justice Department “white paper,” on the authority to conduct “lethal operations” against U.S. citizens abroad if they are enemy combatants in our war against al-Qa’ida, has touched off another round of controversy about the lawfulness of our tactics. Although the memo does not mention the use of drones as a particular means of killing, it is widely understood that drones are the Obama administration’s preferred method of “lethal operation,” and the killing in 2011 of Anwar al-Awlaki by a drone strike set off a great deal of commentary on whether the president of the United States can “target” American citizens for death by simply declaring them enemies of the state.

This white paper is the administration’s attempt to deal with the questions raised by our current wartime practices. It is presumably based on substantially similar legal memoranda prepared by the Office of Legal Counsel in the Justice Department; one should not expect such memoranda, if they surface, to add much.

One might have hoped, however, for a legal analysis more competent than the one represented in this white paper. Its anonymous authors make two large errors.

First, the tight focus on whether American citizens can ever be the target of a “lethal operation” is under-inclusive. Much of the white paper is taken up with discussions of whether citizens are protected by the principles of due process when the government contemplates killing them as enemy combatants in wartime. But as a glance at the Constitution reveals, the due process clause of the Fifth Amendment (like the one later added in the Fourteenth) does not protect “citizens”; it protects “any person” without regard to whether he or she is a citizen or not. Thus, if the due process clause bears at all on the use of lethal force in wartime, it bears on the use of such force against anyone, not just citizens.

Part of the problem here is the authors’ reliance on the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld , a case involving an enemy combatant who was detained in the U.S. rather than Guantanamo after it was discovered that he was an American citizen. Hamdi borrowed a “balancing” test for due process from a 1976 case, Mathews v. Eldridge , involving the withdrawal of federal disability benefits, and the white paper’s authors use the same test.

But in Mathews it did not matter whether the person challenging a deprivation was a citizen or not, and the Hamdi ruling’s repeated mantra that a citizen’s rights were at stake was entirely misplaced. What should have mattered was not his citizenship but whether he was being held by law enforcement authorities for trial before a civilian court, or being detained instead by military authorities as either a prisoner of war or an unlawful enemy combatant subject to military justice. (In order to obviate the stupidity forced on it by this ruling, the government later released Hamdi to Saudi Arabia on condition that he never return to the U.S.)

The point is that due process, because the clause addresses the rights of persons , is the same for citizens and aliens, if they are rightfully subject to our authority to bring the law to bear on them”and none of the white paper’s cited precedents older than the misguided Hamdi ruling suggests otherwise.

That brings us to the second problem with the paper: It is overly solicitous. The authors seem entirely innocent of the fact that where we are not contemplating the use of the law’s authority over persons (as we do in our criminal justice, immigration, or administrative-law systems), but are instead contemplating the use of military force against enemies in a war, the question whether we are affording those persons “due process” is an absurdity. The question, properly speaking, does not even arise.

Remember, if we are competent interpreters of the due process clause, it does not matter whether the person we have in view is a citizen or alien. Does anyone think that it matters whether a foreign enemy combatant receives some “balance” of due process before we kill him from the sky in a just war? If not, then it does not matter one iota more in the case of an American citizen who takes up arms against his country. Nor does it matter, as the white paper’s authors seem to think, whether our lethal operation constitutes a “seizure” under the Fourth Amendment’s clause on “unreasonable searches and seizures.” The Fourth Amendment does not accord more rights to citizens than to aliens, and if it is completely inapplicable to the employment of war powers against aliens, then the same can be said regarding citizens.

Just this side of absurdity is the white paper’s consideration of whether the government is violating a federal statute forbidding one U.S. citizen from murdering another U.S. citizen outside the country. Unlike its constitutional reasoning, here at least the paper takes up a legal provision that deals especially with citizens. But it is plainly misguided to think this statute is applicable to the prosecution of a war by our military commanders, for the killing of the enemy in combat (as opposed to when an enemy is hors de combat ) is by definition not murder”a point the paper labors too hard to show.

What the paper concludes when the dust of its irrelevancies settles is that an American citizen can be targeted for killing by our military if these conditions are met:

(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force

”those four principles being elsewhere identified in the paper as “necessity, distinction, proportionality, and humanity (the avoidance of unnecessary suffering).”

But with the exception of the felt need that a “high-level official” be involved (another irrelevancy driven by the mistaken focus on citizenship), everything said here ought to guide our drone strikes against anyone in the ranks of the enemy, whatever their nationality. If they are not threats, we may not kill them; if they are, we may. If capture is feasible, we should capture them; if not, not. And we should always strive”whether with bullet, or bomb, or Hellfire missile from a Predator drone”to wage war with discrimination, proportionality, and humanity, using no more force than is necessary.

Everything else in this white paper, like much else being said in the ongoing controversy over “targeting U.S. citizens with drones,” is a distraction, a legal error, and a moral confusion.

Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.