In armed conflict, can it be Constitutional to target Americans with drones (or anything else)? Yes, and here’s a book that explains why.
My friend and colleague Professor Jeff Powell has written a terrific new book entitled Targeting Americans: The Constitutionality of the U.S. Drone War. Last week the Center on Law, Ethics and National Security co-hosted with the Goodson Library a panel where Professor Joseph Blocher (one of the Nation’s most brilliant young Constitutional law scholars) and I discussed the book with the author. Assistant Dean for Library Services Melanie Dunshee did a wonderful job as our emcee.
A video of that discussion is now available and is found here. Without giving too much away, allow me to say that one of the things I very much like about the book is how succinct it is (187 pages of text, along with another 29 pages of a very interesting appendix). I also appreciate how eminently readable Jeff made it. It’s very much not a book limited to legal specialists, but is readily intellectually ‘accessible’ to interested members of the general public.
Regarding the book’s substance, Jeff avoids what I call the “big mistakes” I so often see with respect to discussions about drones by legal scholars and others. For example, he expressly doesn’t attempt to address the essentially military determinations of the tactical and/or strategic wisdom of striking this or that belligerent in an armed conflict.
Along that line a concern suggested by the book and reflected in our dialogue was that there can be problematic tendency in government (and elsewhere) to wrongly translate an assessment that something is legal to do as meaning it is also wise to do. In other words, legality does not, ipso facto, equate into prudent policy (even as the absence of legality may unfailingly illustrate imprudent policy). Legality is a predicate to, not a substitute for, proper decision-making.
Another point that Jeff makes – and one that is often lost on academics and others – is that the platform/technology is not itself dispositive (or even much relevant) to the analysis of the Constitutional issues. In that respect, it doesn’t much matter from a legal perspective if the individual is killed with a drone or a Special Forces operation or by some otherwise lawful means.
Jeff also centers his focus on domestic law, and clearly differentiates between it and international law requirements – too often these separate legal regimes are unproductively mashed together. (I’ll be discussing in a future post the interesting speech by Brian Egan, the new State Department Legal Advisor. Even though it doesn’t mention drones, per se, it does address the U.S.’s view of the international law which would be applicable to them.)
I was pleased that Jeff disposed of what may be the most misunderstood legal principle associated with targeted killings: the concept of assassination. He makes it clear that killing an individual enemy belligerent in armed conflict is not “assassination,” unless it is done “treacherously” in some way. (The detailed explanation of what might be called ‘assassination law’ is found in Hay Parks’ classic 1989 memorandum on the subject that you can find here.)
Of course, Jeff doesn’t shy away from the tough issues, to include analysis of the President’s Commander-in-Chief powers under Article II of the Constitution (which may be among the hottest issues in national security law these days), as well as the scope of the 2001 Authorization for Use of Military Force. Most controversial perhaps is his conclusion that the 5th Amendment due process clause does not generally prohibit targeted killings of Americans in wartime, and specifically did not do so in the case of Anwar al-Awalki – even as he takes issue with the way the government sought to explain the role of due process in that case.
Wholly separate from the value of the book as an explicit analysis of targeted/drone killings, is the way Jeff conveys general precepts of Constitutional analysis and interpretation into language everyone can understand. In fact, it is well worth a read just to get a better understanding of the Constitution, and how it can (should?) be interpreted (the Appendix essay is especially valuable for that, not to mention Phillip Bobbitt’s fascinating forward).
All in all, this is one book so relevant and timely that everyone ought to read it (and, because of its lucidity and reasonable length, everyone actually can read it!). Again, here’s the video of the panel discussion, and I invite you to take a look.
