No Comment — October 4, 2010, 10:34 am

A Footnote on Quirin

A number of readers have written asking questions about the construction I put on Ex parte Quirin in a recent post about the al-Awlaki case. Do I really believe that Quirin authorizes the president to assassinate U.S. citizens away from a battlefield, they ask? The answer is simple: no. I discussed the history of this case in “State of Exception” in the July 2007 issue. Ex parte Quirin does not stand for the proposition that the president is entitled to order the extrajudicial killing of an American citizen or anything of the sort. But it does stand for the idea that in wartime the fact that an enemy combatant holds a U.S. passport is generally irrelevant to his treatment under the laws of armed conflict. Quirin involves a challenge to a military commission convened by President Roosevelt to try a group of German saboteurs who came ashore in Long Island and Florida during World War II. They were quickly rounded up and charged with violations of the laws of war and conspiracy to violate the laws of war and tried before a military commission created by presidential order. Louis Fischer provides an excellent summary of the case and its implications here. (PDF) All eight German saboteurs tried in that case had lived in the United States and had a fluent, colloquial command of American English; two were United States citizens. One of the issues unsuccessfully raised by their counsel was the notion that the two U.S. citizens were entitled to access to U.S. courts and should otherwise be treated differently from the other non-citizen German saboteurs. The Court did not address the detailed questions about the consequences of U.S. citizenship, except to observe that U.S. citizenship of an enemy belligerent “does not relieve him from the consequences for a belligerency which is unlawful because in violation of the law of war.”

That is all I was referring to. The Bush Administration relied heavily on Quirin to support what it did in Guantánamo. That posture was fundamentally mistaken: we can start with the fact that the Quirin court was not dealing with the 1949 reiteration of the Geneva Conventions, which has Common Article 3 and in which spies and saboteurs were placed in a special position, with inferior rights to other prisoners, but still with some limited protections. The Supreme Court got this right when it decided Hamdan.

So how does this apply to al-Awlaki? The question is whether it does. If the Obama Administration can show that he really is an enemy belligerent in a U.S. war with al Qaeda and its associated forces, then it might be entitled to use lethal force against him. The problem here seems to be that al-Awlaki is not on any currently recognized battlefield. He is living in a house somewhere in Yemen, communicating with the world by phone and Internet. Still, if the Obama Administration can show that he is actually part of some command-and-control system for the enemy, and he is actually using his position to direct violent acts against Americans and American interests, then it would be entitled to use lethal force against him, subject to limitations concerning harm to innocent civilians around him and so forth. At one point I thought the Obama Administration was going to try to make this case; now they seem to have pulled back from it and instead want to rely on vague claims of executive power. And that is deeply disturbing.

It makes more sense for al-Awlaki to be captured alive, interrogated, and then charged and prosecuted for whatever crimes the government can show. If the Obama Administration is attempting to do this, then it should make clear that this is in fact its objective, not the validation of some vague presidential power to assassinate.

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