Targeting American Citizens: Legal Constraints Between Constitution, Executive, and Congress

February 13, 2014 Updated: April 24, 2016

The Obama administration is again contemplating the legal ramifications of targeting an American citizen who has decided to take up arms against the US.  Due to the ongoing nature of this decision and the Justice Department’s case building process, the location and name of the individual had been withheld by the Associated press who originally stated in a report that they were “withhold[ing] the name of the country where the suspected terrorist is believed to be because officials said publishing it could interrupt ongoing counterterror operations.”  Furthermore, “the suspected terrorist is well-guarded and in a fairly remote location, so any unilateral attempt by U.S. troops to capture him would be risky and even more politically explosive than a U.S. missile strike” putting the Obama administration in a legal bind.

However, CNN has since reported the target is an apparent high-ranking member of the al-Qaeda affiliate al-Shabaab, which despite being located primarily in Somalia, the US citizen in question is currently located in Pakistan.  According to CNN’s report, the individual in question has “contacts with senior al-Qaeda leadership in Pakistan,” and al-Qaeda in Pakistan has “stepped up links” with al-Shabaab.  US-Pakistan relations have withered and reports last week stated Pakistan asked to US to temporarily halt drone strikes while the Pakistani government negotiates with the Taliban.

Last year, the Justice Department outlined a three pronged test for justifying the killing of American citizens who take up arms against the US in a Justice Department White Paper, but under new restraints to the drone program announced by President Obama, only the military, not the CIA can kill suspected terrorists.  The irony here is President Obama has tried to shift the drone program to the Defense Department but efforts have stalled.  DOJ lawyers are still building a case against this individual in question and working on legal justifications for their actions.

The administration has used the Authorization to Use Military Force (AUMF) for legal jurisdiction in the past for similar actions.  As Chris Edelson points out in a scholarly article he authored titled “In Service to Power: Legal Scholars as Executive Branch Lawyers in the Obama Administration,” President Obama’s Administration has used AUMF incorrectly as justification for carrying out actions in conflicts such as Libya.  As Edelson noted, the Obama administration cites AUMF as recognizing the US “in an armed conflict with al-Qa’ida and its associated forces, and Congress has authorized the President to use all necessary and appropriate force against those entities,” when in fact, AUMF, “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.  States that this Act is intended to constitute specific statutory authorization within the meaning of the War Powers Resolution.”

Two pieces of the AUMF language stick out.  First, some have interpreted – “…in order to prevent any future acts of international terrorism against the United States by such nations…” – in broad terms to justify targeted killings or military interventions to prevent further terrorist activity that may affect national security.  Others have focused on the portion just before the previous statement – “…against those, nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…” – to limit the executive’s use of force.  For example, Edelson stated that al-Qaeda in the Arabian Peninsula (AQAP) was not associated with the terror attacks on September 11, 2001 yet the majority of the drone strikes ordered by the US have occurred in Yemen, where AQAP is based.

Second, the last portion of the authorization refers to the War Powers Resolution, which has been disputed by the executive and legislative branch for decades.  Senator Tim Kaine (D-VA) talked about legislation he has introduced in a recent interview to replace the War Powers Resolution.  Kaine discussed the use of military force by the president and stated that, “the framers of the Constitution had a clear view: Congress must formally approve the initiation of significant military action and the President, as Commander-in-Chief, is responsible for the day to day management of a military action once initiated.”  He also stated, “Congress has only declared war 5 times while Presidents have initiated military action well over 120 times.”  Kaine believes this points to a need for change because as he said, “The 1973 War Powers Resolution has not worked as intended.”

Kaine also addressed concerns regarding AUMF mentioning, “The Authorization is broadly worded and both the Bush and Obama Administrations have given it an even broader interpretation…Administration officials expressed the opinion that the Authorization of September 18, 2001 might justify military action for another 25 to 30 years, in regions spread across the globe, against individuals not yet born, or organizations not yet formed, on 9/11.”

Congress continues to feel undermined when the executive carries out unilateral action.  According to the language of Kaine’s bill, it will, “establish a constructive and practical means by which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in a significant armed conflict.”  The one caveat to the bill is it only mentions, “armed conflict.”  I have no doubt the executive branch lawyers will continue to justify “short term, strategic strikes” such as drone strikes in which no US soldiers are deployed, which would circumvent this proposed legislation.

The Obama administration lawyers have their work cut out for them in terms of justifying a “targeted strike” against this supposed US citizen who has joined al-Qaeda.  Details are still vague given the secrecy necessary for the operation.  The administration will be sure to continue to evaluate the fall out of their strike against Anwar al-Awlaki, an American citizen who joined al-Qaeda and who preached jihad against the US.  While the White Paper justified his killing, the DOJ, it appears, cannot use these same guidelines based on new restrictions established by President Obama.  They must also weigh how they want their relations to move forward with Pakistan as relations have begun to warm overtime.  Additionally, it seems as if an agreement to keep troops in Afghanistan after the 2014 withdrawal deadline will not come to pass and the administration has found solace in Pakistan as a regional ally.  They must be careful not to further damage this delicate balance if they want to maintain some semblance of military footing in the region. 

The framers of our union established three branches of government and included separation of powers between these branches.  However, in many cases, the three branches are meant to work together, especially when deciding how to take action against foreign threats.  While the Obama administration is unlikely to consult with Congress in this particular issue, expanded executive power has become a rising concern.  Congress has contributed to this rise in power but they are taking steps to reclaim some of it.  The Obama administration asserts capture is the number one option and lethal force is only taken when capture is infeasible.  Whether or not American citizens who take up arms against the US “surrender” their Constitutional rights to due process, maybe there should be a greater debate involving additional branches of government.