Targeting Citizens and the Fifth Amendment: The Operational/Non-Operational Distinction, and the Question of Known Citizens as Collateral Damage

Over at Slate, Will Saletan has an interesting post up querying whether the Fifth Amendment analysis potentially underlying the decision to kill al-Aulaqi—broken down into requirements that the person be otherwise targetable in connection with al Qaeda, that the person pose an imminent threat, and that the person be located in a place where capture is not a feasible alternative—really adds anything beyond what already is required to justify an attack against a non-citizen. Will’s point is that (i) we are only resorting to drones in circumstances where captures in general aren’t feasible and (ii) the temporal loosening of “imminent” makes the threat test largely toothless. As a result, he concludes, a citizen associated with al Qaeda is no less likely to be targeted than any other al Qaeda member. I think, however, that there likely is an important additional element built into the imminent-threat prong of the test: the nature of the person’s role. I don’t think it is accidental that the government has emphasized al-Aulaqi’s migration from idealogue to operational leader with hands-on involvement in particular plots (a point Ben emphasizes in another Lawfare post here). The government’s due process analysis should treat this as a weighty factor in the analysis, and I suspect that it probably does (to be clear, I’m not privy to that analysis—I’m just speculating based on what I think the correct analysis actually is).

Now, does this mean that Will’s bottom line is wrong? That’s hard to say. The same strike that killed al-Aulaqi also killed Samir Kahn (as Alan notes here)—another American member of AQAP, one who so far as I know was not involved in operational planning but who was a key propagandist (playing a major role in producing AQAP’s english language webzine Inspire). The million dollar question, from the point of view of the issue Will raises, is whether it would be consistent with the Fifth Amendment to have targeted Samir Kahn standing alone (or, if you prefer, killing “core” al Qaeda propagandist-and-US-citizen Adam Gadahn). I’m willing to bet that there have been fierce internal debates about this, and would not be surprised if the OLC memo turns out to draw exactly this distinction.

If that is the case, it also raises an interesting further question when a non-targetable citizen is in the company of someone who can legitimately be targeted. From an IHL perspective, the relevant constraint is proportionality, brought to bear through a collateral damage analysis.  But does the Fifth Amendment offer the same leeway in this setting? That is to say: If you cannot directly target Samir Kahn in light of the Fifth Amendment, is it ok to knowingly kill him while formally targeting another person with whom he happens to be riding? Note that this issue might not have arisen in this instance—I don’t think we know that the government knew Kahn was in the car with al-Aulaqi. And of course I could be wrong in speculating that about a operational/propogandist distinction being drawn for Fifth Amendment purposes. In any event, this will be an interesting issue to look for should the apparent OLC memo be released.