Kenneth Anderson had an interesting article on the Volokh Conspiracy last week. In it, he addresses the United States' practice of targeted killings. Specifically, he reports that an American citizen, Anwar al-Aulaqi, is an approved target for such targeted killings. Anderson then goes on to examine whether al-Aulaqi's citizenship makes any difference in the legality of the targeted killing.
He concludes that it does not:
In general, the Constitution creates limits on governmental power, it does not grant rights. Those limitations, except in very specific circumstances, depend only upon the attempted government action, not upon the target of that action. This is true both in terms of detainees at Guantanamo (the government cannot deny them due process just because they aren't citizens) and foreign corporations with free speech. If American corporations can make independent expenditures in elections, there's a very weak case for banning foreign corporations from doing the same thing.
(NOTE: It's true that the government can restrict constitutional rights based on the presence of a certain level of governmental interest. The level of scrutiny depends upon the right in question. It's conceivable that citizens could have more protection than non-citizens because the government might have a more compelling interest in restricting the rights of foreigners. However, the citizens don't have more rights than non-citizens...the government just might have a less compelling reason to abridge the rights of citizens than those of non-citizens.)
He concludes that it does not:
The question is, what difference, if any, does it make that he is a US citizen? Answer, as a combatant and therefore as a person subject to being targeted, none. You can target him like any other combatant.I'm inclined to agree. The idea that it would make a difference is rooted in thought that the thought that the Constitution, in general, provides special protections for American citizens. This is a relatively common misconception, and one that particularly annoys me. It's true, in some limited cases, that the Constitution gives special protections to citizens. The 14th Amendment provides, in part:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United StatesThat, obviously only applies to citizens. However, there is nothing to suggest that phrases such as (from the 1st Amendment) "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press" should apply only to United States citizens.
In general, the Constitution creates limits on governmental power, it does not grant rights. Those limitations, except in very specific circumstances, depend only upon the attempted government action, not upon the target of that action. This is true both in terms of detainees at Guantanamo (the government cannot deny them due process just because they aren't citizens) and foreign corporations with free speech. If American corporations can make independent expenditures in elections, there's a very weak case for banning foreign corporations from doing the same thing.
(NOTE: It's true that the government can restrict constitutional rights based on the presence of a certain level of governmental interest. The level of scrutiny depends upon the right in question. It's conceivable that citizens could have more protection than non-citizens because the government might have a more compelling interest in restricting the rights of foreigners. However, the citizens don't have more rights than non-citizens...the government just might have a less compelling reason to abridge the rights of citizens than those of non-citizens.)
No comments:
Post a Comment
I encourage commenters to use their real name, although I do not require it.
Blogger employs an automatic spam filtering algorithm for comments. If a non-spam comment has been filtered out, email source4politics@gmail.com and the issue will be investigated.