operations. See also, e.g., Geoffrey S. Corn & Eric Talbot Jensen, Untying the Gordian Knot: A Proposal for Determining Applicability of the Laws of War to the War on Terror, 81 Temp. L. Rev. 787, 799 (2008) (“If… the ultimate purpose of the drafters of the Geneva Convention was to prevent ‘law avoidance’ by developing de facto law triggers—a purpose consistent with the humanitarian foundation of the treaties—then the myopic focus on the geographic nature of an armed conflict in the context of transnational counterterrorist combat operations serves to frustrate that purpose.”).[1]
If an operation of the kind discussed in this paper were to occur in a location where al-Qa’ida or an associated force has a significant and organized presence and from which al-Qa’ida or an associated force, including its senior operational leaders, plan attacks against U.S. persons and interests, the operation would be part of the non-international armed conflict between the United States and al-Qa’ida that the Supreme Court recognized in Hamdan. Moreover, such an operation would be consistent with international legal principles of sovereignty and neutrality it if were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted. In such circumstances, targeting a U. S. citizen of the kind described in this paper would be authorized under the AUMF and the inherent right to national self-defense. Given this authority, the question becomes whether and what further restrictions may limit its exercise.
II.
The Department assumes that the rights afforded by the Fifth Amendment’s Due Process Clause, as well as the Fourth Amendment, attach to a U.S. citizen even while he is abroad. See Reid v. Covert, 354 U.S. 1, 5–6 (1957) (plurality opinion); United States v. Verdugo-Urquidez, 494 U.S. 259, 269–70 (1990); see also In re Terrorist Bombings of U. S. Embassies in East Africa, 552 F.3d 157, 170 n.7 (2d Cir. 2008). The U.S. citizenship of a leader of al-Qa’ida or its associated forces, however, does not give that person constitutional immunity from attack. This paper next considers whether and in what circumstances a lethal operation would violate any possible constitutional protections of a U.S. citizen.
A.
The Due Process Clause would not prohibit a lethal operation of the sort contemplated here. In Hamdi, a plurality of the Supreme Court used the Mathews v. Eldridge balancing test to analyze the Fifth Amendments due process rights of a U.S. citizen who had been captured on the battlefield in Afghanistan and detained in the
- ↑ See Prosecutor v. Tadic, Case No. IT-94-1AR72, Submission of the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused, at 27–28 (Int’l Crim. Trib. For the Former Yugoslavia, App. Chamber July 17, 1995) (in determining which body of law applies in a particular conflict, “the conflict must be considered as a whole,” and “it is artificial and improper to attempt to divide it into isolated segments, either geographically or chronologically”).
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