Justice Department memo reveals legal case for drone strikes on Americans

[ulmont]

Thanks.  Can you give me a steer to a court case/cases in which the US Constitution is held to be interpreted differently outside the US than internally?  I know that citizenship can create external jurisdiction over an individual, but can't seem to find cases where a government action  is held to be legal merely because it is being carried out outside the US. 

I am aware of the Bush administrations arguments on this score, but can't find any factual basis for their assertions in re, for instance, Gitmo.  I am obviously not looking in the right places.

See the discussion starting at page 25 of the Boumediene opinion - I've pulled out a couple of interesting bits:

The Court has discussed the issue of the Constitution's extraterritorial application on many occasions. 
...
A constricted reading of Eisentrager  overlooks what we see as a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism.
...
Based on this language from Eisentrager, and the reason­ing in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process  through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inher­ent in resolving the prisoner's entitlement to the writ.
...
As to the second factor relevant to this analysis, the detainees here are similarly situated to the  Eisentrager petitioners in that the sites of their apprehension and  detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that  weighs against finding they have rights under the Sus­pension Clause.

http://www.supremecourt.gov/opinions/07pdf/06-1195.pdf

...and some followup thoughts in this law review article:
http://clhc.usc.edu/why/students/orgs/lawreview/documents/Neuman_Gerald_82_2.pdf

The distinction the Administration is drawing is between US citizens and non-citizens, not between wartime and peacetime procedures.

I think the Administration is drawing the war / peace distinction as well.  From the DOJ White Paper:

The United States is in an armed conflict with al-Qa'ida and its associated forces

http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf

Moreover, at 5-6 of the DOJ White Paper, there are numerous references to "the realities of combat," "the government's interest in waging war," and that the subject is planning attacks against the United States.

At Page 5, the DOJ explicitly assumes that 5th and 4th Amendment principles apply to US citizens extraterritorially.

[grumbler]

See the discussion starting at page 25 of the Boumediene opinion - I've pulled out a couple of interesting bits:

The Court has discussed the issue of the Constitution's extraterritorial application on many occasions. 
...
A constricted reading of Eisentrager  overlooks what we see as a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism.
...
Based on this language from Eisentrager, and the reason­ing in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process  through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inher­ent in resolving the prisoner's entitlement to the writ.
...
As to the second factor relevant to this analysis, the detainees here are similarly situated to the  Eisentrager petitioners in that the sites of their apprehension and  detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that  weighs against finding they have rights under the Sus­pension Clause.

http://www.supremecourt.gov/opinions/07pdf/06-1195.pdf

...and some followup thoughts in this law review article:
http://clhc.usc.edu/why/students/orgs/lawreview/documents/Neuman_Gerald_82_2.pdf

The distinction the Administration is drawing is between US citizens and non-citizens, not between wartime and peacetime procedures.

I think the Administration is drawing the war / peace distinction as well.  From the DOJ White Paper:

The United States is in an armed conflict with al-Qa'ida and its associated forces

http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf

Moreover, at 5-6 of the DOJ White Paper, there are numerous references to "the realities of combat," "the government's interest in waging war," and that the subject is planning attacks against the United States.

At Page 5, the DOJ explicitly assumes that 5th and 4th Amendment principles apply to US citizens extraterritorially.

The issue in  Boumediene was whether or not a prisoner at Gitmo had the right of habeus corpus, and the court held that he did.  That is part of what has me confused here.  The USSC has held any number of times that the Constitution applies outside the US (indeed, the Constitution must hold outside the US, as it is the sole font of US government power).  The exact nature of that power depends, clearly, on a number of factors; the insular and Eisentrager cases demonstrated that the Constitution is not the only law which holds, even in foreign areas under temporary US jurisdiction.

This doesn't seem to me to support any distinction between US and non-US citizens when it comes to attacking them overseas.  I would note that I am not challenging the legitimacy of such attacks, merely querying as to why the US administration seems to think that the nationality of those targeted has any bearing on the lawfulness of the attacks.

[dps]

I think it might be useful to look at some of the 19th century court cases involving US territories.  Offhand, I don't recall any of the names of those cases.

[dps]

I would note that I am not challenging the legitimacy of such attacks, merely querying as to why the US administration seems to think that the nationality of those targeted has any bearing on the lawfulness of the attacks.

Ah, I missed this before my previous post.  I think the administration's position really boils down to saying that the nationality of those targeted doesn't have any bearing on the lawfulness of the attacks.  Basically, they're saying that if you're a member of or supported of Al Queda and/or associated groups, you're a legit military target, regardless of whether or not you're a US citizen.

[ulmont]

dps, the territory cases are the insular cases referred to in boumediene.

[dps]

dang, I'm missing stuff tonight.

[jimmy olsen]

Short answer is that I think your reading is sound, but that isn't always how the courts view it.
Process is due to "persons" not citizens so a straight textual reading suggests that citizenship shouldn't matter. The Constitution by its plain meaning restricts the ways in which the government can act with respect to any "person" to deprive life, liberty or property, regardless of citizenship.

One possible counter is to contend that the degree of process that is due in a particular situation depends on circumstances, and citizenship status in one relevant circumstance.  That could explain why the government does things to non-citizen immigrants it doesn't and wouldn't do it citizens.

In particular, the degree of "due" process in the context, of a war seems rather low.  Certainly, not a lot of individualized determinations were made during Korea or Vietnam before depriving persons of life.

The constitution provides for a declaration of war though, which I will note was not done in either of those cases.

[grumbler]

The constitution provides for a declaration of war though, which I will note was not done in either of those cases.

And I will note that the courts have held that a congressional Authorization for the Use of Military Force is legally the same as a declaration of war, and so your note is moot.

[Neil]

The constitution provides for a declaration of war though, which I will note was not done in either of those cases.

And I will note that the courts have held that a congressional Authorization for the Use of Military Force is legally the same as a declaration of war, and so your note is moot.

So then the hippies were right and Bush and Congress were war criminals for their invasion of Afghanistan?  Kellogg-Briand clearly forbids the attack by the US on Afghanistan, as they were both contracting parties.

[CountDeMoney]

I honestly don't see what the big deal is with the recent emphasis on these drone killings.  There are bigger problems to worry about.

[The Brain]

I honestly don't see what the big deal is with the recent emphasis on these drone killings.  There are bigger problems to worry about.

Relax, shareholder value is fine.

[Scipio]

See the discussion starting at page 25 of the Boumediene opinion - I've pulled out a couple of interesting bits:

The Court has discussed the issue of the Constitution's extraterritorial application on many occasions. 
...
A constricted reading of Eisentrager  overlooks what we see as a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism.
...
Based on this language from Eisentrager, and the reason­ing in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process  through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inher­ent in resolving the prisoner's entitlement to the writ.
...
As to the second factor relevant to this analysis, the detainees here are similarly situated to the  Eisentrager petitioners in that the sites of their apprehension and  detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that  weighs against finding they have rights under the Sus­pension Clause.

http://www.supremecourt.gov/opinions/07pdf/06-1195.pdf

...and some followup thoughts in this law review article:
http://clhc.usc.edu/why/students/orgs/lawreview/documents/Neuman_Gerald_82_2.pdf

The distinction the Administration is drawing is between US citizens and non-citizens, not between wartime and peacetime procedures.

I think the Administration is drawing the war / peace distinction as well.  From the DOJ White Paper:

The United States is in an armed conflict with al-Qa'ida and its associated forces

http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf

Moreover, at 5-6 of the DOJ White Paper, there are numerous references to "the realities of combat," "the government's interest in waging war," and that the subject is planning attacks against the United States.

At Page 5, the DOJ explicitly assumes that 5th and 4th Amendment principles apply to US citizens extraterritorially.

The issue in  Boumediene was whether or not a prisoner at Gitmo had the right of habeus corpus, and the court held that he did.  That is part of what has me confused here.  The USSC has held any number of times that the Constitution applies outside the US (indeed, the Constitution must hold outside the US, as it is the sole font of US government power).  The exact nature of that power depends, clearly, on a number of factors; the insular and Eisentrager cases demonstrated that the Constitution is not the only law which holds, even in foreign areas under temporary US jurisdiction.

This doesn't seem to me to support any distinction between US and non-US citizens when it comes to attacking them overseas.  I would note that I am not challenging the legitimacy of such attacks, merely querying as to why the US administration seems to think that the nationality of those targeted has any bearing on the lawfulness of the attacks.

My beef is that with regard to US military action, the only concern needs to be the application of the law of war, unless we're talking about civilian agencies operating these drones.  The language about due process is confusing, stupid, and wrong, because there is no need for it to be there.  The white paper clearly says that the drones are operated in accordance with the law of war (whether they are or not), and so they should be judged on that basis.  Due process extra-territorially is a non-sequitur; the only issue is the law of nations.

So, if the issue of due process is included, it must mean that it is provided to give justification for an internal/domestic use of the drones against US citizens deemed to be terrorists (presumably whose capture and trial for treason would cause too many problems).

[grumbler]

My beef is that with regard to US military action, the only concern needs to be the application of the law of war, unless we're talking about civilian agencies operating these drones.  The language about due process is confusing, stupid, and wrong, because there is no need for it to be there.  The white paper clearly says that the drones are operated in accordance with the law of war (whether they are or not), and so they should be judged on that basis.  Due process extra-territorially is a non-sequitur; the only issue is the law of nations.

So, if the issue of due process is included, it must mean that it is provided to give justification for an internal/domestic use of the drones against US citizens deemed to be terrorists (presumably whose capture and trial for treason would cause too many problems).

Due process is required under the law of war, though the technicalities of due process are different under the law of war than under domestic US law.  I agree, though, that the discussion of due process in this context seems to be a red herring, and this is why I raised the issue.  US citizens do not enjoy due process right that non-US citizens lack.

[Scipio]

My beef is that with regard to US military action, the only concern needs to be the application of the law of war, unless we're talking about civilian agencies operating these drones.  The language about due process is confusing, stupid, and wrong, because there is no need for it to be there.  The white paper clearly says that the drones are operated in accordance with the law of war (whether they are or not), and so they should be judged on that basis.  Due process extra-territorially is a non-sequitur; the only issue is the law of nations.

So, if the issue of due process is included, it must mean that it is provided to give justification for an internal/domestic use of the drones against US citizens deemed to be terrorists (presumably whose capture and trial for treason would cause too many problems).

Due process is required under the law of war, though the technicalities of due process are different under the law of war than under domestic US law.  I agree, though, that the discussion of due process in this context seems to be a red herring, and this is why I raised the issue.  US citizens do not enjoy due process right that non-US citizens lack.

The due process they are talking about seems to be separate from considerations of the law of war, though.  This is just a poorly-worded memo.

[grumbler]

The due process they are talking about seems to be separate from considerations of the law of war, though.  This is just a poorly-worded memo.

Agree that it is poorly written.  The constant insertions of "US citizen" and "senior commander" unnecessarily muddle the waters.  Neither of those need to be considerations when evaluating the three criteria for the lawful use of lethal force.