The Obama Speech: The Same Standards for Targeted Killings Apply to Non-Citizens as to Citizens

There are many important strands to President Obama's national-security speech, but I want to focus on just one particularly noteworthy element. In clear terms, President Obama announced today that the same substantive standards apply to targeted killings operations against non-American enemy combatants overseas as apply to American enemy combatants overseas. Here is what the President's text says:

But the high threshold that we have set for taking lethal action applies to all potential terrorist targets, regardless of whether or not they are American citizens. This threshold respects the inherent dignity of every human life

When American citizens are involved, the President made clear that different procedures might be used (such as informing the Department of Justice in advance). But in terms of when the use of lethal force overseas is justified, the same substantive standards will govern. This judgment, announced for the first time clearly in this speech, arguably is in some tension with, or resolves ambiguity in, the prior legal and policy pronouncement on targeted killings of Attorney General Holder. In the AG's Northwestern speech, he indicated that force would be used as a last resort against American enemy combatants overseas, because the Constitution required that result when American lives were at issue. Today, the President announced the same constraint applies when non-American lives are at issue (without, understandably, going further and saying whether this equal treatment was required by international law, or by prudential policy judgments, or by more general moral considerations). I think the President is right on this issue and his administration's policy is now philosophically clearer than before. In the article I flagged earlier today, we raised questions about whether the administration's prior position (or what appeared to be that position) was defensible:

Differentiating the treatment of threats coming from citizens as opposed to non-citizens is a deeply controversial matter, both in theory and in international law. Particularly when force can be used only once the enemy “target” is highly individuated, in terms of his specific actions, it is not at all clear why, in principle, an American citizen in the same overseas location who poses the identical threat as a non-American should have greater legal protection. As a matter of domestic politics, perhaps, one can understand why political leaders would want to ensure their own citizens that they receive special protection against the exceptional circumstance of their own government using lethal force against them. But as a matter of law, why should governments have the power to kill non-citizens who could otherwise be captured but not kill citizens in that circumstance? As a matter of morality, David Luban argues, “the nationality of casualties is irrelevant. . . To focus on the lives of Americans is parochial in a way that the morality of war is not.”

Further, as a matter of international law and the domestic law of some countries, providing greater protections to one’s own citizens in the terrorism context can be a reason to condemn, not praise, the practices by which a country metes out its use of military force; political process theory would suggest that the only protections non-citizens are likely to have in these and similar contexts is if a country’s own citizens must live under the same legal regime. Indeed, United Kingdom’s House of Lords held British anti-terrorist detention policy illegal precisely because it imposed greater restrictions on non-nationals than on British citizens. And finally, despite the apparent distinctions suggested by Attorney General Holder’s speech between targeting citizens and non-citizens, Daniel Klaidman, in describing President Obama’s decision to authorize the killing of Al-Awlaki, writes that after the President reviewed the intelligence and was left with no doubt that Al-Awlaki posed a major and imminent threat to American security, the fact that Al-Awlaki was an American, President Obama believed, “was immaterial.” Perhaps there is journalistic license in that summary statement, but whether the emerging individuation of the laws of war, both domestically and in international law, requires or permits the further individuation and differentiation of citizens and non-citizens remains a difficult and unresolved question.

Today President Obama appears to have resolved that question, at least as a matter of policy regarding the use of lethal force.