Writing in The New York Times today, University of Notre Dame law professor Mary Ellen O'Connell notes her cameo appearance in the Justice Department white paper summarizing the legal rationale for killing Americans whom President Obama identifies as enemy combatants:
I was struck to find my name on Page 4 of the white paper, which summarized my argument that "the conflict between the United States and Al Qaeda cannot lawfully extend to nations outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanistan itself." The lawyers dismissed my view, arguing that "there is little judicial or other authoritative precedent" on the issue, since the nation is fighting a "transnational, non-state actor" where the "principal theater of operations" is not in a country in conflict with America. These are more than legal quibbles.
Indeed. The question of what counts as a combat zone is closely tied to the question of who counts as a combatant and is therefore eligible for death by drone. Within the United States, the Obama administration treats terrorism as a crime, meaning that suspected terrorists have the same rights as other criminal defendants, including the right not to be killed without due process of law. But according to the Justice Department, if the suspected terrorist happens to be located in another country—in Pakistan, Yemen, or Somalia, say—he is subject to summary execution. Since the Authorization for the Use of Military Force that Congress approved after 9/11 "does not set forth an express geographic limitation," the white paper suggests, the president has the authority to kill people he believes to be members of Al Qaeda or allied groups wherever they may be found. O'Connell's analysis, which she developed in response to the "Global War on Terror" concept championed by George W. Bush, goes to the heart of such claims:
In an armed conflict, in the zone of hostilities, combatants may be targeted without warning or detained without trial. Such treatment is unlawful against persons engaging in violence in the absence of armed conflict. Armed conflict occurs when organized armed groups exchange protracted, intense, armed hostilities. The groups must be associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial until the end of hostilities is consistent with the principles of necessity and proportionality, as well as general human rights, when related to a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender. Those arrested outside a conflict zone should receive a speedy trial on the basis of the evidence that has led to the arrest. There must be an evidentiary basis to charge a person with a crime—much more evidence than supports the right to detain an enemy combatant captured on an actual battlefield in a zone of combat.
By contast, Sen. Lindsey Graham (R-S.C.) thinks combatant status is in the eye of the beholder—and that beholder is the president, no one else. "The process of being targeted I think is legal," Graham says, "and should reside in the commander in chief to determine who an enemy combatant is and what kind of force to use." Since the power to determine who is a combatant is the power of life and death, Graham is saying he trusts the president with an unlimited license to kill. If Obama decided tomorrow that Graham is a combatant and marked him for death, that would be A-OK in Graham's book.
Back in 2007, when Barack Obama was running for president, The Boston Globe asked him, "Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?" Obama's response:
No. I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.
Evidently, however, Obama does think the president has plenary authority to kill U.S. citizens, as long as he does not detain them first.
O'Connell's 2010 congressional testimony on "Lawful Use of Combat Drones" is here.
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