Yes US Citizens can be declared Enemy Combatants. No, its not Unconstitutional
To understand why certain US citizens are declared Enemy Combatants today, we must go back to the 1990s when Osama first began attacking US persons and property, and to al-Qaeda’s attack on the USS Cole (12 October 2000). President Clinton’s response was that these were criminal acts and the US would prosecute the criminals, working in partnership with nations having access to the perpetrators, in order to hunt them down and bring them to justice.
Such an approach to terrorist attacks and asymmetrical warfare stood in sharp contradistinction to the doctrine of “active defense” developed in the Reagan era by George Schultz, which included “active prevention, preemption, retaliation, and deterrence.”
With Clinton’s less aggressive approach, the FBI was dispatched to Yemen and Arabia to hunt down and bring to justice the perpetrators of the USS Cole bombing. Needless to say there was much consternation in the FBI, the State Department and White House when, much to their surprise, Saudi Arabia and Yemen were unwilling to cooperate. Such was the Clinton Doctrine.
After 9/11, President Bush formulated a different doctrine, relating back to Schultz and Reagan, but going farther:
The President adopted a set of principles to guide US policy: first, that serious terrorist attacks should be treated as acts of war, not merely as crimes; second, that states are responsible for terrorism emanating from within their borders; and third, that we must preempt attacks where possible, because of their potentially devastating consequences.
Obama has taken us back to Clinton, and beyond. He has not actually verbalized a doctrine. Rather he has a general style of foreign policy that eschews America’s uniqueness and status as a world power and relies on engagement, negotiation and collaboration. None the less, it seems clear that he has revived Clinton’s doctrine by dismantling the Bush Doctrine.
When he proposed the closing of the American detention facility at Guantanamo Bay and the use of American civil courts (instead of military courts) to try Guantanamo detainees, ordered discontinuing the use of the term “Global War on Terror,” prohibited government publications from associating Muslim terrorist attacks with Islam, and delayed substantive response to Iran’s WMD progress by pressing instead for engagement, Obama was reversing the Bush Doctrine and, de facto, giving terrorist prisoners the status of American civilian criminals whose rights and person are protected by our constitution and centuries of social and criminal legislation.
Back in 2010, the Ninth Circuit Court of Appeals voted unanimously to reject the Obama doctrine and return to the Bush doctrine. The court dismissed the case against former Bush administration lawyer John Yoo, filed by convicted terrorist Jose Padilla. The case focused on Yoo’s immunity from the lawsuit and the definition of torture, since Padilla claimed that he was tortured while in military detention; and it was Yoo who had argued to the Bush administration that the interrogation techniques used on Padilla did not qualify as torture.
The ruling vindicates the principle that government officials are immune from private litigation for their national-security decisions. The ruling is also a watershed for repudiating sham tort claims whose goal is to intimidate government personnel who deal with terrorists as enemy combatants rather than as common criminals. But even more important, the court’s ruling reinforces the legal definition of enemy combatant as it applies to terrorists; and it is in this legal arena that the ruling reverses Obama.
It is important to recall that modern regulations dealing with the treatment of war prisoners are based on the Third and Fourth Geneva Conventions, and these conventions did not envision issues related to the asymmetric terrorist warfare in which the USA and much of the Western world are now engaged.
According to these conventions, to qualify for prisoner of war status and the protections provided therein, the prisoner must have been a lawful combatant when taken prisoner, engaged in lawful acts of war, wearing a recognizable uniform, part of a chain of command, openly bearing arms, and serving in the armed forces of a “high contracting party” (i.e., one of the states that signed the treaties enacting the Geneva Conventions).
Terrorists share none of these characteristics, and al-Qaeda is not a “high contracting party.” Moreover, there is no time limit to detention for a prisoner of war. Prisoners are exchanged when the war is over, in accordance with the terms of the peace treaty. So even if terrorists were protected by the Geneva Conventions, terrorist prisoners may be legally detained for the entire course of the war until al-Qaeda and the USA sign peace treaties.
By denying Padilla the right to sue Yoo, and declaring that he has the status of an enemy combatant and not that of a common criminal, the court has in essence declared that the United States is indeed at war, was so in the days following 9/11 when al-Qaeda and its affiliates attacked, and continues to be at war with an enemy that has not agreed to the West’s laws of war and does not respect them.This decision diametrically contradicts Obama’s un-enunciated Doctrine of “engage and negotiate even while they are blowing us up.” This decision validates the assertions of many of Obama’s critics, who say that we are at war, we are under attack, and our Commander-in-Chief is trying to resolve this by glad-handing our attackers.
When the Japanese bombed Pearl Harbor, we did not send the FBI to arrest the Japanese pilots (the Clinton Doctrine) nor did we try to engage Japan in constructive conversation about how to address their grievances (the Obama Doctrine). We recognized that Japan had declared war on us, and we retaliated with an offensive that brought Japan to its knees and won the war.
Osama bin Laden, his surviving al-Qaeda leaders, the now numerous al-Qaeda off-shoots and affiliates in the Maghreb, central Africa, the Sinai, Saudi-Arabia, Iraq, Syria, and Afghanistan, all are waging a brutal and savage terror war against the USA in particular and against Western civilization in general. They do not wage this war in conformity to Western norms and conventions, nor are they amenable to treaties, compromises, engagement, or negotiations.
As their leaders have said numerous times, they wage this war against “global un-belief” (that’s most of us) until all the world is Muslim or at least under Muslim sovereignty, no matter how long it takes. Theirs is a triumphalist apocalyptic vision in which their terrorist jihad against the non-believer hastens the coming of the end times and ultimate Muslim victory and redemption.
Can US Citizen’s be Designated Enemy Combatants?
The Supreme Court has ruled that the state does indeed have the power to indefinitely detain American citizens who join the enemy. In Hamdi v. Rumsfeld, the Court found that the U.S. could hold citizens who join al Qaeda as enemy combatants:
There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” … While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. … A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States” …
As to habeas, the court ruled that:
…a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.
In other words, so long as he has the right to challenge their designation as an enemy combatant before a neutral decision maker, an American citizen who joins al Qaeda can be held indefinitely for the duration of hostilities. No need to amend the Constitution.
Who can be detained as an Enemy Combatant?
Under current law, the Trump administration claims the authority to detain:
persons that the President determines planned,
authorized, committed, or aided the terrorist attacks that occurred
on September 11, 2001, and persons who harbored those responsible for
those attacks. The President also has the authority to detain persons
who were part of, or substantially supported, Taliban or al-Qaida forces
or associated forces that are engaged in hostilities against the United
States or its coalition partners, including any person who has
committed a belligerent act, or has directly supported hostilities,
in aid of such enemy armed forces.
That claim of authority is based on the Authorisation for Use of Military Force (“AUMF”) passed by Congress shortly after the September 11 attacks, as informed by the law of war. The Bush Administration previously claimed very
similar authority, albeit invoking not just the AUMF but also the inherent power of the President under Article II of the Constitution.
So let’s compare the language of the administration’s claimed
authority (quoted above) to the language of the NDAA:
(1) A person who planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, or harbored
those responsible for those attacks.(2) A person who was a part of or substantially supported al-Qaeda,
the Taliban, or associated forces that are engaged in hostilities
against the United States or its coalition partners, including any
person who has committed a belligerent act or has directly supported
such hostilities in aid of such enemy forces.
The NDAA is really a codification in statute of the existing authority the administration claims. It puts Congress’s stamp of approval behind that claim and that’s no small thing. But it does not–notwithstanding the widespread
belief to the contrary–expand it.
No federal statute can repeal the Bill of Rights. To the extent any
provision of the NDAA is found to conflict with any provision of the
Bill of Rights, it will not survive constitutional scrutiny.
Is Indefinite Detention of Suspected Terrorists after 9/11 Comparable to Japanese Internment?
The legal efforts to tie down America’s war-making powers find their inspiration and moral authority in the examples of Gordon Hirabayashi and Fred Korematsu. These aren’t household names to most Americans, but they are well-known to historians and lawyers. Both men challenged the decision of President Franklin Roosevelt to place Japanese-Americans in military detention after the Dec. 7, 1941, Pearl Harbor attack. Unanimously in (1943), but by a divided majority in (1944), the Supreme Court upheld the use of national origin as a proxy for loyalty on the ground of “military necessity.”
Ever since, lawyers have agreed that the Supreme Court erred, a conclusion reinforced by historical evidence that government lawyers concealed reports showing little security threat from Japanese-Americans. As then-Chief Justice William Rehnquist observed in his 1998 book, “All the Laws But One”: “There was no reason to think that Gordon Hirabayashi and Fred Korematsu were any less loyal to the United States than was Mitsuye Endo,” a Japanese-American woman who had also challenged her internment in court and who was released from an internment camp.
Hirabayashi was born on April 23, 1918, in Seattle to parents who had emigrated from Japan. His father grew vegetables and sold them from a truck. Hirabayashi was in his senior year at the University of Washington when Japan launched its devastating surprise attack on Pearl Harbor. When FDR issued his order in 1942, followed by a military curfew, Hirabayashi immediately resolved to defy it, for which he was tried and sentenced to 90 days in prison. After the war, Hirabayashi became a professor of sociology and worked to overturn his wartime convictions. They were finally overturned in 1987. The following year, Congress enacted a reparations bill for Japanese-Americans interned during the war. Hirabayashi died in January 2012.
Now the University of Washington has published his diaries to further bring the World War II internments to bear on the war on terror. Lane Ryo Hirabayashi and the late James Hirabayashi, the editors of “A Principled Stand” and the nephew and brother of Gordon, respectively, are worried about “domestic use of a wholesale curfew against an identifiable segment of the U.S. population — such as Middle Eastern or Muslim Americans” after a “a large-scale, violent attack.” Yet the book mostly retells the daily life of a young man with powerful Christian convictions.
Growing up, Hirabayashi faced instances of outright racism. He recalls that his Boy Scout troop scoutmaster had to reverse his decision to appoint a Japanese-American youth as the lead scout. As he writes: “I think the parents protested, ‘Why is this Jap becoming the senior leader?’ “
But the book is also full of kindness from fellow Americans who rejected the prejudices of their day. Hirabayashi devoted his time to the YMCA, which allowed him to live for free in exchange for chores. His white roommate and best friend, Howard Scott, confided in him: “You know, you’re the closest person I have.” Local Quakers organized Hirbayashi’s defense committee and represented him all the way to the Supreme Court. (The American Civil Liberties Union refused to challenge the internments.)
The wartime decision to intern Japanese-Americans in far-off camps was a grave injustice. In one fell swoop, the Roosevelt administration classified a group of citizens as national-security risks solely based on their ancestry. The government forced all Japanese-Americans to evacuate the West Coast, leave behind their property and possessions, and live in flimsy barracks surrounded by barbed-wire fences and armed guards.
Hirabayashi’s reminisces also reveal the differences between World War II and the war on terror. FDR made a terrible constitutional error. Rather than wholesale targeting of a nationality, his administration should have made case-by-case judgments. Today the U.S. hasn’t acted against civil liberties in favor of security. Rather than create some vast new surveillance state, the Patriot Act only adapted existing powers for the age of the Internet and al Qaeda. Yet the combination of tough interrogations, electronic intercepts, special forces and drone strikes have destroyed al Qaeda’s original leadership and central nervous system.
In fact, the 9/11 response may have included an overreaction to the World War II internments. As a Justice Department official on that terrible day, I endeavored to ensure the government didn’t target specific races or religions. Despite the controversies over Bush administration policies, most of which have continued apace under President Obama, civil liberties have survived in far better shape than in any previous American war. Rather than a cautionary tale, Hirabayashi shows how far our nation has come in its attitudes on race. It also shows that wartime panics can just as easily harm security as work in its favor.
The Basis for Indefinite Detentions Today
Recall that in December 2009, many on the right were outraged when the Obama administration gave al-Qaeda terrorist Umar Farouk Abdulmutallab — who nearly brought down a plane over Detroit on Christmas Day with an underwear bomb — a lawyer and a Miranda warning after just 50 minutes of questioning.
In a January 2010 letter to Attorney General Eric Holder, Sen. Jeff Sessions (R-Ala.), along with other Republicans on the Judiciary Committee, demanded to know who “made the decision to treat Umar Abdulmutallab as a criminal suspect, entitled to Miranda warnings and the right to counsel, rather than an unprivileged enemy belligerent subject to military detention.”
There was similar outrage when the Obama administration did the same thing after Taliban-trained terrorist Faisal Shahzad tried to blow up a car bomb in Times Square . . . and when Chechen terrorist Dzhokhar Tsarnaev set off a bomb at the Boston Marathon . . . and when alleged Benghazi mastermind Ahmed Khattala, was captured and questioned briefly without a Miranda warning aboard a Navy ship before eventually reading him his rights and bringing him to Washington for the civilian trial now underway in federal court.
When U.S. forces captured Mustafa al-Imam, who is alleged to have been involved in the 2012 Benghazi terror attack, instead of holding him as an enemy combatant and questioning him under the laws of war, we sent him to Washington to stand trial in civilian court — just as Obama would have.
Trump had a second chance when accused Uzbek terrorist Sayfullo Saipov was captured alive after allegedly mowing down and killing eight people on a New York bike path. Sen. Lindsey O. Graham (R-S.C.) spoke to Trump the night of the attack and told him that he should declare Saipov an enemy combatant.
“The last thing I want this guy to hear tonight is you have a right to a lawyer. The last thing you should hear is his Miranda rights,” Graham told Fox News. “I hope President Trump will break the cycle of turning the war into a crime by declaring this guy a suspected enemy combatant. Hold him under the law of war until we know exactly who he is and what he did.”
Trump didn’t follow Graham’s advice. The president suggested he might, telling reporters at the White House that Saipov was an “animal” and that he might “send him to Gitmo.” That turned out to be all talk as well. Instead, the administration read Saipov his Miranda rights, gave him a lawyer and charged him in federal court — just as Obama would have.
There is no way that interrogators were able to effectively interrogate Saipov before charging him. Were the intelligence community’s leading experts on Uzbekistan and the Islamic State in the room for his questioning? Did Saipov’s interrogators have time to exploit the contents of his cellphone — including his calling record and all the images, text messages, emails and other content — and run those contents by those intimately familiar with any National Security Agency raw traffic to, from or about him, and then confront him on the contents? Did they share Saipov’s answers to questions with CIA experts for verification and recommended follow-up questions?
Federal authorities say Saipov told the FBI he plotted his attack for more than a year and has been in the country since 2010. Are they absolutely sure that they have accounted for all of his actions, and interactions, during the course of that entire period, before Mirandizing him? Have they brought in all his known associates for questioning and used their statements to further challenge and probe his statements? There is zero chance that they did all this. So why is he already being told he has the right to remain silent? It is an outrage.
Continuing the Obama administration’s law-enforcement-first approach to detaining and questioning terrorists is simply inexcusable. So far Trump is all bluster and no bite when it comes to dealing with alleged terrorists. Calling them “animals” is meaningless if he gives them legal protections they do not deserve — and fails to get intelligence from them that Americans deserve to keep them safe from more attacks.
Yes, the United States Government can kill American Enemy Combatants
While Red Dawn may be far-fetched, it is not hard to imagine a situation in which our government could strike our enemies inside the United States. We almost did so on September 11, 2001. After the World Trade Center was hit, the military was given orders to shoot down any other hijacked planes before they reached their intended targets. In the confusion of that day, they never carried out those orders. But those orders were constitutional. In his memoir, President Bush writes that when he heard that Flight 93 had gone down in a Pennsylvania field, he thought it had been shot down on his orders. Only later did he learn that the passengers had overcome the hijackers and taken the plane down themselves.
Rand Paul said that he was simply seeking reassurance from the Obama administration that drone strikes would not be used on noncombatants here in America. But his complaint is much broader than that — and his definition of what constitutes a “combatant” is narrower. As he put it on the Senate floor this week: “When I asked the president ‘Can you kill an American on American soil?’ it should have been an easy answer. It’s an easy question. It should have been a resounding, an unequivocal, ‘No.’”
That is just flat wrong. As the Wall Street Journal explains so:
The U.S. government cannot randomly target U.S. citizens on U.S. soil or anywhere else. What it can do under the laws of war is target an “enemy combatant” anywhere at anytime, including U.S. soil. This includes a U.S. citizen who is also an enemy combatant. The president can designate such a combatant if he belongs to an entity — a government, say, or a terrorist network like al Qaeda — that has taken up arms against the United States as part of an internationally recognized armed conflict…. [T]he U.S. could have targeted (say) Anwar al-Awlaki had he continued to live in Virginia. The U.S. killed him in Yemen before he killed more Americans. But under the law, Awlaki is no different than the Nazis who came ashore on Long Island in World War II, were captured and executed.
The Supreme Court has been very clear that American citizens who join enemy forces “are enemy belligerents within the meaning of . . . the law of war.” As a legal matter, if you fight for America’s enemies, you should have no expectation that your citizenship provides you with some sort of “protective bubble” — whether on a foreign battlefield, or if you enter the United States in order to carry out a military strike against your fellow Americans. As a moral matter, an American who does this is worse than a Pakistani or Yemeni-born terrorist. He is not only an enemy combatant, he is a traitor — and certainly deserving of no special protection.
The reason we might not use a drone to take out an American-born terrorist found in the United States planning a terrorist attack is that there are other, better options for dealing with such a threat. But could we lawfully use military assets to stop an enemy fighter from carrying out a military strike on our soil? Absolutely. For the same reason that, if we captured such an individual, we would not have to read him his Miranda rights, but could hold him in military custody as an enemy combatant, and try him by Military Commission — as we did with American-born Nazi saboteurs captured here.
Sens. Paul and Cruz have introduced legislation which declares: “the Federal government may not use a drone to kill a citizen of the United States who is located in the United States.” It goes on to say the prohibition “shall not apply to an individual who poses an imminent threat of death or serious bodily injury to another individual.”
Well, what exactly does “imminent” mean? Do we have to wait to take out the sniper on the rooftop as he’s chambering a round? But even with this caveat, Sen. Paul has refuted his own question. He asked the president “Can you kill an American on American soil?” and said it was “an easy question” and the answer should have been “a resounding, an unequivocal, ‘No.’” Yet his own legislation says the answer is “yes” if there is an “imminent” threat.
Sen. Paul should answer some additional questions
• Were the terrorists who entered the United States to carry out the 9/11 attacks “enemy combatants”?
• Is it constitutional to kill enemy combatants in this country in order to prevent them from carrying out an attack on the United States?
• Does it matter to their status as enemy combatants if they are Americans?
• Is it constitutional for the US to kill an enemy combatant with a drone on foreign soil?
• Does it matter if he is an American, like Anwar al-Awlaki?
• Do Americans who betray their country and fight for our enemies deserve special protection on the battlefield?
If Sen. Paul believes they do, then he needs to spend some time studying the laws of war.
But to further expand on this, suppose a U.S. military special operations unit came upon an al Qaeda training camp in Africa. It discovers terrorist trainers teaching recruits how to use automatic weapons, improvise explosive devices, and practice suicide attacks and small unit tactics. Though the personnel hail from different nations, reconnaissance suggests that some of them may be Americans.
What should the team do? Under the laws of war, the U.S. military unit can surprise the instructors and recruits with snipers and artillery as well as shooting at closer quarters. But under President Barack Obama’s half-hearted approach to terrorism, revealed in the leaked Justice Department memo, military units on the ground or drones in the air would have to pause and seek guidance from multiple bureaucrats.
Instead of having the traditional authority to kill the enemy and destroy their resources, American soldiers and agents have entered a legal netherworld of Obama’s creation. The speed and decisiveness of U.S. counter terrorism operations will suffer, even as the administration withdraws from Iraq and now Afghanistan, and gives up the intelligence networks there.
In place of the clarity of the rules of war, the administration has thrust American soldiers into the three- and four-factor balancing tests that govern police officers walking the beat in downtown New York. For the first time in the history of American arms, presidential advisers will sit and weigh the “due process” rights of enemy soldiers, judge whether they pose an “imminent” threat, or decide if capture “becomes feasible.”
Due process rights for the enemy, according to the DOJ memo, will require a careful balancing of the “nature and quality of the intrusion” on the enemy’s constitutional rights against “the governmental interests.” And Attorney General Eric Holder limits the target to “an operational leader continually planning attacks” against the United States.
To be clear, the memo, technically a “white paper,” is correct in affirming that the United States is at war with al Qaeda. That conclusion rests on the actions of two presidents over four terms, Congress over the past decade, the Supreme Court, the U.N. Security Council, and NATO. It cannot be seriously disputed — although some liberal critics cling to the belief that al Qaeda is simply a criminal conspiracy, not a true belligerent, and that only law-enforcement actions, not military ones, may be taken against it.
Given that the United States is at war, it follows that it may legitimately use lethal force against enemy combatants, regardless of their nationality. Enemy soldiers, even when not engaged in active hostilities, are legitimate targets during war. If that is true of enemy soldiers in uniform, it must be true also of al Qaeda operatives, who may not wear uniforms but who are the functional equivalent of regular troops. And just as a U.S. national serving in the German Army in 1944 or the Confederate Army in 1863 could be lawfully targeted and killed, so may a U.S. national performing a military function for al Qaeda.
Despite claims that the president is asserting a radically new and menacing authority, Obama’s decision to target al Qaeda operatives who are U.S. nationals is by no means unprecedented. The fact is that American presidents (and state governors) have lawfully deployed military force against citizens in insurrection, rebellion, or war against the United States from the beginning of the nation. In 1787, the very year in which the Constitution was framed, the governor of Massachusetts deployed the state militia to put down Shay’s Rebellion.
President George Washington personally led federalized militia troops into western Pennsylvania to suppress the Whiskey Rebellion of 1794. President Andrew Jackson threatened to use force against South Carolina in the “nullification crisis” of 1832. During the Civil War, President Abraham Lincoln deployed Union armies and navies against the Confederates who, despite being in rebellion, remained U.S. citizens. President Franklin Roosevelt directed operations against U.S. citizens fighting for Axis forces during the Second World War. President Dwight Eisenhower sent federal troops into Little Rock Arkansas when angry mobs of segregationists threatened to prevent African-American children from attending the city’s public schools.
A pattern of congressional legislation reaching back to the early republic reinforces such authority. The Insurrection Act of 1807, which remains in force, authorizes the president in proper circumstances to put down insurrections and rebellions. And Supreme Court decisions are also in accord. In Moyer v. Peabody (1909), the court, speaking through Justice Oliver Wendell Holmes, Jr., ruled that the governor of Colorado had the right and duty to suppress a local insurrection, stating that “he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace.”
Where the white paper commits serious error is in positing that the “due process” clause of the Fifth Amendment applies to al Qaeda operatives at large. In Hamdi v. Rumsfeld (2004), the Supreme Court ruled that once suspected enemy combatants had been captured and detained, some measure of “process” was owed to them. But the court’s decision applied to enemy combatants only after their capture, but not before it.
The distinction makes perfect sense. It would be shocking to give a captured enemy combatant a drumhead trial on charges of committing war crimes and then shoot him moments later. But minutes before being captured, that same enemy combatant would have been a lawful target for lethal fire. Enemies reduced to captivity do not pose anything like the degree of danger of those under arms and at large.
The white paper’s assumption that U.S. citizens who are enemy combatants are constitutionally entitled to due process even while engaged in, or available for, hostilities is both gratuitous and in error. It is not compelled by the language of the due process clause, which protects “persons,” not “citizens.” If the white paper were right in claiming that U.S. nationals in al Qaeda deserved due process rights, then it should logically have concluded that the same was true of Saudis or Yemenis in al Qaeda. Further, the white paper’s extension of due process to enemy combatants at large is not dictated by any Supreme Court decision. It also has no basis in the traditional laws of war or state practice. And it carries significant operational disadvantages.
Some liberal critics of the white paper object to the fact that it allows senior executive branch officials to decide who appears on targeting lists, without the possibility of judicial review. That criticism is misplaced for several reasons. First, the Federal District Court correctly held in the Awlaki case that targeting decisions presented a “political question.”
In other words, the federal courts lacked the competence to decide which targets to select; that difficult assignment called for the specialized expertise of trained military and intelligence personnel, subject to the supervision of their civilian political superiors in the executive branch. Second, there is no basis for the suspicion that executive-branch officials have incentives to target U.S. citizens wantonly, without careful consideration of intelligence information (some of it from on the ground informants) linking them to al Qaeda’s war against the United States. They may commit errors, but there is no reason to think that they act in bad faith or for careerist purposes.
