If a plane full of 200 American citizens is hijacked by foreign jihadists, the law does not tell us whether the president should shoot down the plane or let it be plowed into a skyscraper and kill 3,000 American citizens. It is the kind of excruciating decision that war makes necessary. Legal niceties do not tell us how to resolve it.
That is the problem with our debate over the treatment of U.S. nationals who join the enemy’s forces in wartime — most urgently, over the targeted killing of our fellow citizens. We want the legal answer. But the legal answer is not going to help us. Under the Constitution, Americans who join the enemy may lawfully be treated like the enemy, which includes being attacked with lethal force. That, however, tells us only the outer limits of what is permissible. It does not tell us what we need to know: What should we do?
The government’s war powers must be boundless, at least in theory. We must be able to marshal all our might to repel any conceivable existential threat. Yet the Constitution, the sole legitimate source of the government’s power to levy war, is, quintessentially, the citizen’s protection against aggression by that same government. Thus, the tension between government’s war powers and the citizen’s fundamental rights is a conundrum. It simply cannot be resolved with finality.
Neither side of our debate is satisfied with that. We want fixed rules. But fixed rules work only if they answer every conceivable hypothetical. So the debate lurches inexorably to worst-case scenarios.
Hypothetically, the country could be invaded by a foreign power abetted by a fifth column of American traitors; for the nation to survive, our armed forces would have to conduct combat operations that quite intentionally involved killing Americans on our own soil. It is also true, though, that a corrupt or reckless administration could wildly abuse a congressional combat authorization, or abuse the president’s inherent, unilateral power to respond militarily to attacks or imminent attacks. So, yes, hypothetically, a wayward commander-in-chief could assassinate his political opponents on the pretext that they threatened national security.
Now, neither of these doomsday scenarios is close to our reality. Fortunately, very few of our fellow citizens collaborate in the jihadist plots of our wartime enemies. As a result, over the last dozen years, only a handful of Americans have been given enemy-combatant treatment.
Of these, only three have been killed in drone strikes. All three killings occurred in a lawless country, Yemen, notorious as a haven for anti-American jihadists. Under the circumstances, the three killings were justifiable. Operating under Congress’s sweeping 2001 AUMF (Authorization for Use of Military Force), it was reasonable for the executive to conclude that Anwar al-Awlaki was an al-Qaeda operative. The other two Americans — Awlaki’s companion, Samir Kahn, and 16-year-old son, Abdulrahman al-Awlaki — were in such propinquity to al-Qaeda operatives that their collateral deaths were, at worst, the fallout of proportional uses of force. (I say “at worst” because, while we are not privy to the intelligence, the circumstances suggest that the latter two may have been jihadists themselves.)
Over the years, three other American enemy combatants were confronted but not killed. John Walker Lindh and Yaser Hamdi were captured overseas and detained as enemy combatants. Lindh was given a civilian prosecution; Hamdi, after renouncing his citizenship, was transferred to Saudi Arabia. The third man, Jose Padilla, is the most instructive case for our present purposes.