Meaningful Membership: Lessons from Criminal Law for Killing in War

Abstract

Should membership in a particular group, by itself, be enough for the government to kill you? This Article starts with the classic lawyer answer of “it depends” but goes beyond it to answer yes, explain why, and recommend limits. The heart of the matter is found in how the law of armed conflict treats transnational, non-state armed groups such as al-Qaeda. When such groups are viewed analogously to state militaries, their members are lawfully subject to lethal attack based on their membership status, distinct from actual hostile conduct. By comparing this focus on status to federal criminal law’s treatment of membership, this Article exposes the current targeting paradigm’s dangerous lack of membership criteria. This legal insufficiency exposes the United States to legitimate charges of arbitrary killing.Yet far from calling for the demise of membership-based targeting in warfare, this article defends the practice while outlining a vital need for clear legal limits. Its primary contribution is its suggestion that guidelines should be drawn from criminal law’s more developed treatment of membership and associational ties as grounds for government action. Specifically, it proposes formally incorporating 18 U.S.C. § 2339B’s conduct plus coordination model, used to prosecute material support to terrorist organizations, into the wartime membership assessment process. This Article reveals that while the wartime methodology roughly approximates the federal statute’s approach, it is legally insufficient due to its ad hoc nature, unbounded scope and lack of rigor. To fix these deficiencies in wartime identification, this Article’s normative analysis highlights both the utility of adopting the statutory model’s categorical method, and the criticality of adding a tailored scienter requirement. Without such limitations, enemy group membership is legally meaningless, and its service as grounds to kill questionable at best.