LESSONS ENCOUNTERED

Rostow and Rishikof
194
“Remarks by the President at the National Defense University,” Washington, DC, May
23, 2013, available at .
195
Al Aulaqi v. Obama (D.D.C. 2010) seems to indicate that judicial inquiry into such process
is a nonjudiciable political question. In Al Aulaqi, Judge Bates held that Anwar Al-Aulaqi’s
lawsuit seeking to enjoin the U.S. Government from targeting his son was nonjusticiable
under the political question doctrine because “[j]udicial resolution of the ‘particular
questions’ posed” would require [it] to decide complex issues such as “whether . . . Anwar
Al-Aulaqi’s alleged terrorist activity render[ed] him a concrete, specific, and imminent
threat to life or physical safety” and “whether there are means short of lethal force that the
United States could reasonably employ to address any threat that Anwar Al-Aulaqi poses
to U.S. national security interests.” These questions, Judge Bates stated, would require the
court take into account military, strategic, and diplomatic considerations—for example,
to “assess the merits of the President’s (alleged) decision to launch an attack on a foreign
target”—that it was simply not competent to handle. Thus, the extent to which due process
conflicts with U.S. Government’s targeted killing program may remain in the realm of
academics but not courts. Al-Aulaqi v. Panetta, No. 12-1192 (D.D.C. July 18, 2012).
196
Blum and Heymann, 189–193.
197
Philip Bobbitt, “Playing by the Rules,” The Guardian, November 15, 2003.
198
Baker; Tower Commission, Report of the President’s Special Review Board (New York:
Bantam Books, February 27, 1987), parts I and II.
199
This insight goes as far back at least as Thucydides, The Peloponnesian War, bk. I, ch. I,
24.
200
For example, Hadley, interview.
201
Each of the four Geneva Conventions of 1949 contains a common Article 3 requirement
of humane treatment of persons detained who are not entitled to the protections
afforded prisoners of war, that is, combatants as defined in the Third Geneva Convention.
The conventions are reprinted in Roberts and Guelff. During the early part of 2002, there
was significant debate as to whether to consider treating captured Taliban or al Qaeda
personnel as prisoners of war under the Third Geneva Convention of 1949. The initial
decision to declare all captured enemy soldiers to be “unlawful combatants”—not entitled
as a matter of law to be treated as prisoners of war—appears to have been the result, at
least in part, of a mistaken reading of the Geneva Conventions. A memorandum went to
President Bush with a significant error. The memorandum stated that, under the Geneva
Conventions, an interrogator could ask only a prisoner’s name, rank, and serial number,
when in fact the convention provides that a prisoner of war is only required to provide
that information. The interrogator may ask whatever question he or she wishes. The
President naturally felt such constraints would have been untenable under the circumstances
created by the September 11 attacks. But the Geneva Conventions would not have
imposed those constraints in the first place. Author conversation with William Lietzau,
former Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy.
398