Questions from the Awlaki Litigation
In August 2010, the father of Anwar al-Awlaki filed a federal lawsuit alleging that his son’s inclusion on CIA and DoD “kill lists” violated the Constitution and international law. The court dismissed the suit for lack of standing and for raising a political question. Several months later, the CIA killed Awlaki and two other U.S. citizens in aerial drone strikes in Yemen. Now the ACLU and Center for Constitutional Rights have responded by filing a separate lawsuit challenging the government’s use of the drones. The defendants are Leon Panetta, David Petraeus, and two other senior military officials, and the complaint alleges that the killings violated the Fourth and Fifth Amendments and the Bill of Attainder Clause. Given the relatedness of the lawsuits and the dismissal of the first on the basis of the political question doctrine, I think there’s very little chance that the second succeeds. But it still raises interesting issues.
One concerns precedent—has the United States ever carried out targeted killings against its own citizens? The answer is yes; the U.S. military has targeted and killed individuals without judicial process notwithstanding their U.S. citizenship. The most significant example comes from the Civil War, during which the Union killed tens of thousands of Confederate soldiers. One might argue that those soldiers were no longer U.S. citizens because they were fighting for the Confederacy, but that position is inconsistent with the view—supported by the Supreme Court’s decision in Texas v. White (1869)—that secession was unconstitutional. As long as secession was invalid, then the Confederacy was void and did not dissolve the U.S. citizenship of its soldiers. More isolated examples appear to have occurred during World War II, when the United States fought against Nazi forces that included some U.S. citizens of German descent. And of course federal law enforcement officers have occasionally killed criminal suspects who presented significant and immediate threats to the public. If the United States has acted permissibly in these cases, then the extrajudicial killing of a U.S. citizen is not unconstitutional per se.