Drone on: the commander in chief power to target and kill Americans.

• Author: Paulsen, Michael Stokes

INTRODUCTION

My proposition is a simple but bracing one: The President of the United States, in his capacity as military Commander in Chief of the nation's armed forces in time of constitutionally authorized war, has the plenary power and discretion under the U.S. Constitution to target and kill specific individuals that he in good faith determines to be active enemy combatants engaged in lawful or unlawful hostilities against the United States.

By "active enemy combatants" I mean persons affiliated with an enemy force or power who have not been captured, who have not surrendered, and who have not laid down their arms and ceased their war-waging activities against the United States. My assumption in this essay is that such enemy combatants might include U.S. citizens. My legal position is that, where U.S. citizens engage in war against the United States, the war power of the United States may be employed against them, just as it could be employed against non-U.S. citizens engaged in war against the United States.

I further maintain that, in targeting and killing enemy combatants in time of war, the President, as Commander in Chief, may use any and all military means and technologies of war available to him, including drone technology. The President may employ such means and technologies wherever the enemy is present, as the President judges appropriate. And he may do so without regard to whether international law purports to restrict such killings, without regard to whether any (otherwise) applicable U.S. statute might be thought to restrict such action, and without resort to any further U.S. legal process or judicial approval.

In setting forth this position, I wish to take as my paradigm case-illustration what might be thought, in theory, to present very nearly the hardest factual case for application of such a view: (i) the targeting of a specific individual; (ii) who is a U.S. citizen; (iii) for killing; (iv) by aerial drone attack technology; (v) by unilateral presidential decision; (vi) without any form of judicial legal process or notice; (vii) irrespective of any constraints that might be thought imposed by international law or other non-constitutional domestic law; (viii) wherever that individual might be found.

This was essentially the situation presented by the targeted killing of Anwar al-Awlaki, a U.S. citizen and al Qaeda operational commander, by drone attack in Yemen in 2011. My claim in this essay is that this seemingly hard case is actually a very easy case for the constitutional legitimacy of unilateral presidential military action under the President's Commander in Chief Clause authority. To see that this is an easy case, all one must do is think systematically about a series of discrete propositions. If one accepts each proposition as legally correct, the conclusion follows that the targeted killing by drone of al-Awlaki--and of others in similar circumstances--fully complies with the Constitution.

My discussion is organized as a series of answers to a series of questions:

First, is there a constitutionally authorized state of war? The answer is yes: The Authorization for Use of Military Force (AUMF) of September 18, 2001 (1) is a legally operative constitutional authorization of war.

Second, was al-Awlaki a legitimate military target--an enemy combatant falling within the scope of this war authorization? The answer, again, is yes: Anwar al-Awlaki was a person who fit within the scope of the AUMF's authorization for use of force against enemy combatants.

Third, are decisions about targeting and killing enemy combatants within the President's exclusive Commander in Chief Clause power to wage and conduct war, when authorized? The answer is a resounding yes: The President might legitimately and lawfully judge Anwar al-Awlaki to be an enemy combatant, covered by the September 18, 2001 AUMF.

Fourth, is al-Awlaki's citizenship relevant? Here, the correct answer is no--or at least it should be "no": The Supreme Court wrongly seems to think that citizenship is, sometimes, relevant. (2) The correct answer is that, in terms of the constitutional application of the war power, the citizenship of an enemy combatant, fighting for a force or power with whom the United States is at war, is not relevant, so long as that combatant falls within the description of persons or groups subject to the application of the war power.

Fifth, does there exist in our constitutional system what might be called a "Due Process of War" Clause that requires further judicial authorization--or some form of "kill warrant"--as a precondition to targeting an enemy combatant? The answer is no, or again, it should be "no": The same Supreme Court decision that wrongly seems to make citizenship relevant also seemingly implies, equally wrongly, that targeting decisions are subject to judicial review or some other form of judicial legal process, at least in the case of U.S. citizen enemy combatants. (3)

Sixth, what is the relevance of international law? The answer is that international law is primarily a political and diplomatic constraint on war-waging, (4) not a domestic legal constraint that can alter or displace the constitutional powers of the President as Commander in Chief.

A caveat: In setting forth and developing these propositions, I wish to emphasize that the views expressed here are points of legal analysis, not of military, strategic, or tactical correctness, moral propriety, or anything else. I am setting forth a purely legal argument. The essence of that argument is that Anwar al-Awlaki was a legitimate military target in time of constitutionally authorized war against an enemy force or power, al-Awlaki being an operational commander for al Qaeda of the Arabian Peninsula, an organization affiliated with al Qaeda, an entity with whom the United States is at war.

1. CONSTITUTIONALLY AUTHORIZED WAR

   The first step of the argument is easy: The United States is in a state of constitutionally authorized war. On September 18, 2001, President George W. Bush signed into law a congressional resolution styled an "Authorization for Use of Military Force" (often referred to as the "AUMF"), (5) the essential legal equivalent of a declaration of war, within Congress's specific enumerated constitutional power "to declare War." (6) The September 18, 2001 AUMF is arguably the most sweeping declaration of war in our nation's history. By its terms, it specifically authorizes the President to:

   use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (7) In addition, somewhat more ambiguously but still significantly, in one of the "whereas" clauses preceding this specific authorization, Congress recited and embraced the proposition that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States," (8) a sweeping--and perhaps somewhat surprising-congressional endorsement of unilateral presidential military action in this area, arguably extending even beyond the scope of the specific authorization for use of force.

   The breadth of the AUMF's war-waging authorization is, as I have discussed at greater length in other writing, (9) truly stunning: The President determines whether a nation, organization, or person possesses a sufficient connection to the attacks of September 11, 2001 by virtue of having been an organization or individual that planned, authorized, committed, or aided--a very broad, elastic term--such attacks. If so, the President is authorized to use force against such nation, organization, or person. Further, if the President determines that the described person, nation, or group harbored--an equally capacious term--such organizations or persons then he is authorized to use force against such person, nation, or group as well. The AUMF is thus a sweeping war authorization against nations, groups, persons, and networks of affiliations. The authority is cast in such broad, extended terms for a purpose: "[I]n order to prevent any future acts of international terrorism" by such nations, groups, or persons.

   It does not take much imagination, or any stretching at all, to see that this war authorization extends to the al Qaeda radical Islamist terrorist network as a whole, and all who affiliate with it and embrace its continued goals of international terrorism and war on America and Americans, or who provide assistance or support of any kind for such network's activities, or who harbor its allies, affiliates, or specific persons. It takes but limited imagination to see that the AUMF might apply to Islamist or jihadist groups and persons who could fairly be cast as cobelligerents with al Qaeda and its affiliates in such war or terrorism against the United States.

   Thus, whatever one's views as to the correct understanding of the Constitution's allocation of war powers--whether one tilts in the direction of a unilateral presidential power to initiate offensive military hostilities (10) or, as I think correct, adheres to the view that, outside of a few limited and exceptional circumstances of defensive war-making, emergencies, and implications from strict necessity, Congress alone has the constitutional power to take the nation from a condition of peace to a condition of war (11)--it is clear that the President's executive war-waging powers and discretion is at its absolute constitutional maximum with respect to persons, nations, or organizations falling within the scope of the September 18, 2001 AUMF. The AUMF adds all of Congress's constitutional war-initiation powers to all of the President's executive war-making powers and...