Fordham Professor Andrew Kent, in a discussion on the Administration’s White Paper on the targeting of U.S. citizens, offers an interesting discussion of the issue in light of the Civil War. In particular, he notes that based on the Civil War experience, the White Paper could have (but did not) argue that there is a categorical exclusion from any due process for citizens who are enemy combatants:
Over the course of the Civil War, the Supreme Court, Executive and Congress all came to agree that, even though secession was illegal and null, and so residents of the Confederate States of America were still U.S. citizens living in U.S. territory, for military purposes residents of the CSA would be treated as de facto enemy aliens (noncitizen nationals of a country at war with the United States). Under well-established prior law, nonresident alien enemies, and all enemy alien combatants no matter where located or domiciled, lacked any protection from the Constitution or other domestic law, and any right to protection of the courts of the United States (a categorical exclusion from the Constitution’s protections).
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Still this Executive precedent does not fully address the “Al-Awlaki problem,” as we might call it, because perhaps the imperatives of large-scale pitched battles against massed enemy forces means that there is no practical ability (or reason) to separately treat enemy soldiers according to their citizenship. On the other hand, when the U.S. is engaging in targeting on a much smaller and more discriminating scale, as it is with its current drone war, perhaps this practical ability to draw distinctions based on citizenship makes it constitutionally mandatory for the U.S. government to do so.
For what it’s worth, the Executive during the Civil War seems to have had the categorical exclusion view even in contexts where individual consideration of citizenship was possible. Military commissions were used extensively against guerrillas in loyal states and, in that individual adjudicative setting, it would have been possible to determine the residence and hence citizenship (de facto or de jure) of the defendant, and treat residents of loyal states differently and better – perhaps moving them to civilian courts. But there does not appear to be evidence that the U.S. military thought this was legally required. Congress’s 1863 habeas statute seems to implicitly have had the same view. On the other hand, Ex parte Milligan (1866) broadly proscribed military commissions against civilians from loyal states.
Read it all here. This, of course, raises lots of issues. Is the Civil War precedent at all relevant here? Should there be n exclusion of constitutional protection when you become an enemy combatant? Is the Civl War analogy effectively mooted by Matthews v. Eldridge? Would it at least be relevant to U.S. citizens who take up with the enemy on a “hot” battlefield–such as the Taliban in Afghanistan? Does the very personal nature of the targeting at issue here distinguish the circumstances fro the Civil War? Are there other, relevant analogies?
Charles A. Blanchard
General Counsel
United States Air Force
