A pattern of congressional legislation reaching back to the early republic reinforces such authority. The Insurrection Act of 1807, which remains in force, authorizes the president in proper circumstances to put down insurrections and rebellions. And Supreme Court decisions are also in accord. In Moyer v. Peabody (1909), the court, speaking through Justice Oliver Wendell Holmes, Jr., ruled that the governor of Colorado had the right and duty to suppress a local insurrection, stating that "he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace."
Where the white paper commits serious error is in positing that the "due process" clause of the Fifth Amendment applies to al Qaeda operatives at large. In Hamdi v. Rumsfeld (2004), the Supreme Court ruled that once suspected enemy combatants had been captured and detained, some measure of "process" was owed to them. But the court's decision applied to enemy combatants only after their capture, but not before it. The distinction makes perfect sense. It would be shocking to give a captured enemy combatant a drumhead trial on charges of committing war crimes and then shoot him moments later. But minutes before being captured, that same enemy combatant would have been a lawful target for lethal fire. Enemies reduced to captivity do not pose anything like the degree of danger of those under arms and at large.
The white paper's assumption that U.S. citizens who are enemy combatants are constitutionally entitled to due process even while engaged in, or available for, hostilities is both gratuitous and in error. It is not compelled by the language of the due process clause, which protects "persons," not "citizens." If the white paper were right in claiming that U.S. nationals in al Qaeda deserved due process rights, then it should logically have concluded that the same was true of Saudis or Yemenis in al Qaeda. Further, the white paper's extension of due process to enemy combatants at large is not dictated by any Supreme Court decision. It also has no basis in the traditional laws of war or state practice. And it carries significant operational disadvantages.
Some liberal critics of the white paper object to the fact that it allows senior executive branch officials to decide who appears on targeting lists, without the possibility of judicial review. That criticism is misplaced for several reasons. First, the Federal District Court correctly held in the Awlaki case that targeting decisions presented a "political question." In other words, the federal courts lacked the competence to decide which targets to select; that difficult assignment called for the specialized expertise of trained military and intelligence personnel, subject to the supervision of their civilian political superiors in the executive branch. Second, there is no basis for the suspicion that executive-branch officials have incentives to target U.S. citizens wantonly, without careful consideration of intelligence information (some of it from on the ground informants) linking them to al Qaeda's war against the United States. They may commit errors, but there is no reason to think that they act in bad faith or for careerist purposes.
The president and his senior advisors are fully entitled to rely on the work of their military and intelligence subordinates. In Scheuer v. Rhodes (1974), a case arising out of the 1970 killings of several Kent State students by the Ohio National Guard, the court wrote:
In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices . . . is virtually infinite. . . . [O]fficials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office. . . . [T]hese officers are entitled to rely on traditional sources for the factual information on which they decide and act.
In short, the white paper is an odd hybrid of sound and unsound analysis. Although it is broadly correct in its conclusions, its account of constitutional law is flawed and its effect on U.S. counterterrorism operations could cause serious damage. In the end, it seems to be driven by the Obama administration's desire to straddle a difficult political issue rather than by a genuine concern for the nation's good.
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