Monday, September 6, 2010;
EARLIER THIS year, State Department legal adviser Harold Koh offered a full-throated defense of the administration's use of drone strikes against al-Qaeda operatives, a tool used increasingly by the Obama administration. "Individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law," he said.
Mr. Koh correctly asserted that the 2001 Authorization for the Use of Military Force, international law and the country's inherent right to defend itself put it on solid legal footing for such attacks, including those outside traditional battlefields.
In his speech, Mr. Koh did not address whether U.S. citizens could be the targets of these strikes. Yet news reports now indicate that the administration has set its sights on at least one American: Anwar al-Aulaqi, a U.S.-born cleric living in Yemen who has been designated a terrorist for his alleged role in the Fort Hood massacre, the foiled "underwear bomber" attack and the attempted car bombing of Times Square. The American Civil Liberties Union took up Mr. Aulaqi's cause last week, arguing that it would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.
U.S. citizens who take up arms against the country are enemy combatants and are indistinguishable on the battlefield from other belligerents. The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be -- and we trust would be -- dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.
But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens. "The imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat" are taken into account before striking, he added.
In the case of an American, the government should go to even greater lengths before carrying out an attack. For example, the president should consider whether the target can be notified of his status and given the opportunity to turn himself in. The executive should also consider making public the general criteria -- excluding ultra-sensitive methods and sources -- that it uses to designate an individual for the target list.
U.S. citizens do not lose all their constitutional rights when they head overseas, but they also cannot use their citizenship as a shield when they join enemy forces with the intention of carrying out violent attacks against the country or its interests.