Why citizenship should not be the main focus of targeted killing

A Justice Department white paper leaked to the press last month addressed the important question of whether, and under what circumstances, it is appropriate for the US government to target a US citizen. The notion that the United States is claiming authority to kill its own citizens has intensified the debate over the US’ use of lethal drone strikes. But focusing too much on citizenship risks obscuring the larger consequences of targeted killing. 

Citizenship, as the white paper notes, is relevant to the constitutional analysis – in particular, to whether drone strikes comply with the Fifth Amendment’s prohibition against depriving a person of life, liberty, or property without due process of law. The memo cites the Supreme Court’s 2004 decision in Hamdi v Rumsfeld upholding the government’s legal authority to detain as “enemy combatants” US citizens, who take up arms against US troops as part of enemy forces, and the Court’s 1942 decision in Ex parte Quirin approving the government’s authority to try an American citizen before a military commission for war crimes committed while serving as a solider in the German army. 

As the memo correctly concludes, US citizenship does not prevent the government from subjecting a person to military detention or trial. Nor does it preclude the government from using deadly force against a US citizen as a wartime measure under appropriate circumstances, such as where the citizen takes up arms against American forces on a battlefield. 

Citizenship, moreover, appears to make no difference from an operational perspective. A citizen may pose as grave and imminent a threat to the country’s security as a foreign national. And if it is necessary for the government to address that threat through a predator drone strike, it is unclear why it would be any less necessary to do so if the target is a US citizen. 

International humanitarian law (IHL), which regulates the government’s use of military force during armed conflict, tracks these operational realities. 

To be sure, the application of IHL to the US’ use of predator drones in the war against al-Qaeda and associated forces raises novel and difficult legal questions. To what extent, for example, does the authority to target terrorism suspects extend beyond “hot battlefields”?  Can the government target a suspected terrorist based on his “membership” in a terrorist organisation? But no matter how these questions cash out under IHL, the target’s citizenship is irrelevant to the analysis.

At the same time, focusing too much on citizenship has its costs. US citizens represent a tiny fraction of those killed by drone strikes. The only two known examples are Anwar al-Aulaqi, the alleged senior al-Qaeda operative killed by a strike in Yemen in 2011, and his 16-year-old son, killed two weeks later. Making US citizens the centre of the public debate over drone strikes misses the real impact, which is visited almost exclusively upon foreign nationals. 

Targeted killings’ long-term ramifications also have little, if anything, to do with citizenship. Just as foreign nationals are the main victims, so too is the impact on foreign opinion the most significant consequence of the US’ use of predator drones. 

Despite increases in the accuracy of drone strikes, errors still occur. Those errors have a devastating effect not just on the family members of victims and their communities, but also influence opinions about the US in countries where the strikes occur. One consequence is to increase radicalisation and undermine support for US counterterrorism operations – precisely the result the US wants to avoid.  

Another consequence is the precedent the US is setting on the international stage. Over time, more countries will have access to this new technology, which they may use against perceived threats in ways the US does not like and that could unleash destabilising forces. The US will be in a stronger position to exercise leadership in this area in the future if it acts responsibly now and conforms its conduct to broadly accepted legal principles. In the final analysis, the US will be judged by how it uses drones not against its own citizens, but against others. 

Further, while the targeted killing of an American citizen may raise unique legal issues, it also contains an inherent check. Because launching a drone strike against a US citizen is so politically charged, the government is likely to be more cautious in selecting the target than it would be in the case of a foreign national. 

Citizenship, to be sure, remains relevant. The US government may, for example, have a greater obligation to provide US citizens a judicial remedy for a drone strike given the privileged constitutional status afforded citizenship in the past. In addition, citizenship can be a useful metric for the targeted killing programme more generally, as the standard for targeting a US citizen will likely represent the most protective standard used in the programme.  

But framing the public debate over targeted killing around citizenship is a mistake. It diverts attention on a handful of cases, while ignoring the programme’s broader impact. It also risks sending a message the US can ill-afford to send – that it cares much more about the rights of a few of its own citizens affected by lethal drone strikes than the many foreign nationals in various countries who are the programme’s main targets and victims.

Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America’s New Global Detention System. 

Follow him on Twitter: @JonathanHafetz