Randal John Meyer**
On October 7th, combat in the Afghani Theatre reached its 12th anniversary. As the Global War on Terror enters another year, America finds itself sinking deeper and deeper into a legal and international black hole from which the prospect of restoring peacetime normalcy is becoming ever more bleak. In 2001, there was Afghanistan. In 2003, there was Iraq. By 2013, we have Somalia, Libya, Yemen, and the almost-war in Syria with operations extending into Uzbekistan, all under the auspices of the Authorization for Use of Military Force's (AUMF) seemingly limitless reach, or a similar, more specific authorization. The country celebrated the eve of Afghanistan's 12th anniversary by putting "boots on the ground" in Somalia and Libya, offending the national sovereignty of both countries and further destabilizing their already tottering governments. The War on Terror is here to stay. Now what?
National Security and Counterterrorism have grown as topics in legal scholarship over the last few years and are increasingly important in the modern world. Nearly every telecommunication or email is monitored by the NSA under a national security or counterterror directive. The Joint Special Operations Command carries out lethal and nonlethal render-then-interrogate programs anywhere in the world that the hint of terrorism may materialize. Prepared or not, one of the legal field’s biggest challenges in the coming decade will be handling the rapidly expanding and usually classified thicket of terrorism law.
Glenn Greenwald and Edward Snowden’s revelations in The Guardian about the extent of NSA spying and the new information still coming to light about the Bush administration’s black site prisons have thrust this field of law into both the media limelight and the political crosshairs of everyday Americans. Both electronic life and America’s international moral stature are at stake in the question of how the country treats its enemies and prisoners, as well as its political dissidents’ privacy and freedom of expression.
However, national security and counterterror leaders have been loath to address the civil rights issues endemic to the War on Terror and the breadth of presidential war power assumed during the Clinton, George W. Bush, and Obama administrations. Thus, from Clinton’s initiation of the render-then-torture program in the 1990s, to Bush’s President’s Surveillance Program and secret torture mills, to Obama’s Drone Wars and PRISM spying program being carried out in many nations across the globe, including the United States, executive power has mushroomed with little effort to curb it. Indeed, the United States has suffered international embarrassmentand political setbacks on account of its lack of military ethics and illegal drone or Special Forces strikes in foreign, sovereign territory.
The first attempts to stunt the encroachment of national security and counterterrorism law on constitutional liberty in the Global War on Terror took the form of habeas petitions from detainees in the Supreme Court cases Rasul, Padilla, Hamdi, and Hamdan. But President Bush remained obstinate in placing civil liberties on the backburner by refusing to limit his security or wartime presidential powers. His successor has taken the same route.
The cases of al-Aulaqi v. Obama and al-Aulaqi v. Panetta represent the absolute fringe of this constitutional enigma: the president’s wartime authority to kill a citizen with absolute impunity in contravention of judicial process of law. Moreover, the legal justification for doing so remains in large part a mystery. The Administration has only released a summary of its justification for that power which is completely out of line with constitutional constraints and establishes support for its powers with a single “cf.” to Hamdi.
This particular legal question of balancing security and liberty will be of increasing import moving into the future. The death toll of U.S. citizens killed by drones is now at four, and the number of U.S. citizens killed by their wartime president in this targeted manner stands to increase dramatically.
While many commentators focus on the isolated droning cases, there is an even greater, widely unnoticed string of attacks against U.S. expatriates who are fighting against the United States and U.S.-backed warlords in Africa. Al Shabab, the al Qaeda affiliate in Somalia against whom the U.S. Special Forces just launched an armed raid, is infused with U.S. jihadists. As Jeremy Scahill points out in his book Dirty Wars: “By the end of 2009, at least seven US citizens had died fighting on behalf of al Shabab and scores of others were believed to be among the group’s ranks and in its training camps preparing for future action.” “[Al Shabab] was showing that it could recruit American citizens and wreak havoc on its puppets and proxies . . . .” By 2010, “[a]mong the most serious concerns identified by the US counterterrorism community was the issue of foreign fighters, particularly those from the United States who had been used as suicide bombers.”***
U.S. citizens fighting against their country are not properly classified as terrorists, but traitors. That is not rhetoric, it is a precise legal point: the specific legal protections afforded to the class of criminals defined as traitors in Article III of the Constitution (the often-overlooked Treason Clause) requires that charges of treason must be proved by, among other things, the testimony of two witnesses or a confession in open court, absent exigent, imminent circumstances such as the immediate self-defense of a solider in the field. Perhaps the al Shabab expatriates who have joined and others like them who continue and will continue to join the jihadist cause are imminently threatened, or perhaps, like Anwar al-Aulaqi, they were just riding along the desert highway in a car, unarmed.
What is the difference between a suicide bomber and a mass murderer? Why were Timothy McVeigh and John Walker Lindh afforded trials and due process while Anwar al-Aulaqi was not? In the United States, there are three separate possible processes for terrorism crimes to be adjudicated: regular criminal prosecutions, courts-martial, and the dreaded military commission. Across the systems, the rights afforded to the accused vary. The variations are not based on the type of crime committed, but on random political circumstance.
My note, The Twin Perils of the al-Aulaqi Case: The Treason Clause and the Equal Protection Clause, explores these issues in depth. It concludes that under all circumstances, the Treason Clause of the Constitution specifically creates additional procedural due process protections, which cannot be abridged by constitutional balancing review. By focusing on correcting the misapprehensive readings of treason law, and debunking the popular myth that the Nazi Saboteur case, Ex parte Quirin, is contrary to that principle, it arrives at a proper reading of treason doctrine in the context of the Global War on Terror. The Twin Perils of the al-Aulaqi Case is available online at SSRN, and a final version will be published in the December issue of Volume 79 of the Brooklyn Law Review.
*This essay is also printed in the The Practicum, the online companion to Brooklyn Law School's scholarly journals.
**Randal Meyer is a J.D. Candidate at Brooklyn Law School and and Articles Editor on the Brooklyn Law Review.
***JEREMY SCAHILL, DIRTY WARS: THE WORLD IS A BATTLEFIELD 270-71, 297, 396 (Nation Books, 2013).