The U.S. government’s decision to list an American citizen on a kill list raises an important series of questions. At the time the government allegedly placed Anwar al-Aulaqi on a kill list, remarkably little was known about the procedures for listing and reviewing placements of individuals. How and under what authority did the government target Anwar al-Aulaqi? What legal standards guide the decision to list? Who makes the initial decisions about listing? What evidentiary standards do they use to determine if the legal standards are satisfied? Who reviews the determinations and how frequently? What opportunity, if any, exists for the listing individual to challenge his placement? Writ large, the pressing issue is whether the executive branch possesses unreviewable authority to order the targeted killing of an American that the President deems to be a threat to the nation.
The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) to filed suit to find out the answers to the questions raised above. Although the actual case has drawn to a close, these questions remain important ones. Rather than attempt to resolve the numerous legal issues raised by the al-Aulaqi litigation, this short piece seeks to explain why the ACLU and CCR brought this lawsuit and then ultimately abandoned it. In short, al-Aulaqi’s case demonstrates both the potential for and the limitations of litigation as a strategy to curb executive authority during the so-called long war on terror. Even though Judge Bates rightly noted that al-Aulaqi’s case is a “unique and extraordinary” one, many issues raised by the litigation speak to more run of the mill terrorism cases. This article begins by identifying the ACLU and CCR’s successful challenge of a specific procedural burden, effectively ensuring greater access to lawyers for many of those designated as terrorists. In contrast, Part II of this article notes the ACLU and CCR’s general failures in accomplishing their immediate litigation goals. Their efforts to expand the standing doctrine and narrow the application of sovereign immunity, state secrets, and political question doctrines were largely futile. Yet, Part III suggests the ACLU and CCR’s real goals may have been the lawsuit’s extra-legal consequences and contributions. While they were unable to obtain a judicial review of the executive branch’s behavior, this part documents how they leveraged the litigation to provoke and influence a public debate over certain aspects of the war on terror. The lawsuit allowed the ACLU and CCR to raise and initiate the framework for legal and policy questions about the targeting of American citizens and the government has responded through leaks and speeches. In the wake of al-Aulaqi’s death, this framework is bearing some limited fruit as the push for greater transparency over legal standards for and reviewability of targeting decisions increases in strength and the demand for a rethinking of the policy wisdom of pursuing a targeting policy grows more fervent.
This paper questions the claim that armed forces have a categorical duty to risk themselves to protect civilians. Wary of air power that limits risk to an attacking state’s own forces, the great political philosopher Michael Walzer and others have criticized NATO’s Kosovo campaign in 1999 and Israel’s 2008-09 Gaza incursion. While international humanitarian law (IHL) already bars the targeting of civilians and requires proportionality between collateral harm and a military goal, champions of the duty to risk assert that more is required.
Although champions of the duty to risk deploy the rhetoric of valor to justify this new obligation, that rhetoric masks questionable judgment and skewed signals. The duty to risk is a myopic approach that would discourage technological innovation and precautions such as warnings. It would also subject commanders to a withering hindsight bias, in essence imposing strict liability on states for civilian casualties. Finally, the duty to risk send perverse signals in conflicts between states and violent non-state actors like terrorist groups, encouraging non-state groups to intermingle civilian and belligerent operations in order to hamstring state responses. This flawed signaling puts even more civilians at risk.
Lowering civilian casualties calls for a structural approach that enhances deliberation about targeting decisions by military lawyers and senior officials. A state would also have to use the most precise weaponry that is practically available, and use the least amount of force required to disable dual-use targets such as power plants where civilian casualties are likely. Finally, a state would have an ethical obligation to cooperate with international investigations. These measures may not produce more heroes, but they promise to save more civilians.
New York University School of Law
Harvard Law Review, Vol. 125, p. 1381, 2012
This article explores the extent to which law constrains the exercise of presidential power, in both domestic and foreign affairs. Since the start of the twentieth century, the expansion of presidential power has been among the central features of American political development. Over the last decade, however, scholars across the political spectrum have argued that presidential powers have not just expanded dramatically, but that these powers are not effectively constrained by law. These scholars argue that law fails to limit presidential power not only in exceptional circumstances (times of crisis or emergency), but more generally; that unconstrained presidential power exists not just with respect to limited substantive arenas, such as foreign affairs or military matters, but across the board; and that statutes enacted by Congress, as well as the Constitution, fail to impose effective constraints.
This article takes these claims on in empirical, theoretical, and cultural terms. Empirically, claims of legally unconstrained presidential power turn out to rest on thin evidence, rarely confront conflicting evidence; the empirical case is indeterminate and perhaps impossible Posner and Vermeule see presidents as Holmesians, not Hartians. Yet even if we enter their purely consequentialist world, in which presidents follow the law not out of any normative obligation or the more specific duty to faithfully execute the laws but only when the cost-benefit metric of compliance is more favorable than that of noncompliance, powerful reasons suggest that presidents will comply with law far more often than Posner and Vermeule imply.
In the area of presidential studies, the Posner and Vermeule approach is particularly fresh. For many decades, legal scholarship on presidential power was confined to assessing how much formal legal power the President should be understood to have, as a matter of the original understanding at the time of the Constitution’s adoption or subsequent legal and political practice. In other disciplines, scholarship on the presidency was heavily personality based — organized around studies of individual presidents, or case studies of particular episodes, or narrative accounts of how various presidents had, for example, used military force. But the greater emphasis in the social sciences in recent decades on institutional analysis has recently reached presidential studies, and an emerging series of works now seeks to analyze the presidency not through individual personalities but through the more systematic tools of empirical and theoretical analysis. Posner and Vermeule’s book, in its effort to theorize systematically about the actual (rather than formal) scope of presidential power, should be seen in this light.
The decision to address terrorism through a war paradigm may represent the most significant change in U.S. national security policy in the decade following 9/11. While the United States still selectively treats terrorism as a criminal law enforcement matter, it has developed an alternative, military-based approach, rooted in the language and logic of a global armed conflict against al Qaeda and associated terrorist organizations (otherwise known as the “war on terror”).
This war paradigm, adopted by the Bush administration, has largely been continued by the Obama administration. It has been endorsed by Congress and sanctioned in many respects by the courts. Treating terrorism through the frame of armed conflict has affected various areas of national security policy, but none more deeply than the detention and prosecution of terrorism suspects. Among the features that distinguish U.S. military-based counter-terrorism detentions from criminal justice prosecutions are the fewer procedural safeguards afforded to detainees, the significantly lower evidentiary burden imposed on the government, heightened secrecy, fewer constraints on interrogations, more limited judicial review, and the open-ended nature of the confinement itself.
This piece examines the United States’ development of a new framework of indefinite military detention and military prosecution after 9/11. It argues that the war on terror has served as the vehicle for normalizing expansive, emergency-type powers that facilitate the interrogation and long-term incapacitation of terrorism suspects. It further describes how employing a war paradigm has helped institutionalize these new detention powers, provided a framework for their future expansion, and shaped the actions of lawmakers and courts.