Anwar al-Aulaqi, a U.S. citizen killed by a targeted drone strike
Yesterday, NBC News released a Department of Justice white paper concerning the “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen
Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force.” Most of the white paper echoes a speech Attorney General Eric Holder delivered last year
laying out the Obama Administration’s criteria for authorizing such a targeted killing, although the paper provides significantly more detail than Holder’s speech about when the administration may deem a targeted attack to be warranted.
It should be noted, as Holder did a year ago, that targeted killings of “specific senior operational leaders” are neither novel nor forbidden by the customary law of war. The United States had the right to target Japanese Admiral Isoroku Yamamoto during World War II, and we were not forbidden from targeting Osama bin Laden because he merely directed attacks against the United States instead of participating in those attacks himself. The DOJ white paper concerns a somewhat more challenging legal question, however — what would have happened if Yamamoto or bin Laden had been born in the United States, and thus enjoyed all rights accorded to U.S. citizens?
Holder previously stated that a high-ranking U.S. citizen enemy combatant would not be targeted unless they pose “an imminent threat of violent attack against the United States,” and much of the commentary on DOJ’s white paper has focused on its expansive definition of what constitutes an “imminent” threat. Under DOJ’s framework, “an individual poses an ‘imminent threat’ of violent attack against the United States where he is an operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States.” Ultimately, however, the wisdom of the memo does not flow from whether or not it uses the word “imminent” in the literal sense — it does not — but from whether it provides constitutionally and morally adequate safeguards on top of the “imminence” standard that ensure no American citizen can be killed outside of a narrowly defined, exceptionally rare set of circumstances.
The Constitution provides that no person may be “deprived of life, liberty, or property, without due process of law,” but it gives no further guidance on exactly how much or what kind of process is “due” to a U.S. citizen who becomes a senior leader of our enemies. Normally, Americans look to the judiciary to provide procedural rights, but federal judges are ill-suited for the kind of swift decision within a narrow window of opportunity that is required in this context. The only circumstances in which the targeted killing of a U.S. citizen could ever hypothetically be justified are ones where the citizen is directly engaging in hostilities against the United States — and there’s a reason judges don’t review generals’ targeting decisions before they’re made. Judges specialize in thoughtful, languid decision-making of the kind that often takes months to consider all arguments on both sides of a dispute. And they typically rely on briefing on both sides of an issue — something that is obviously impossible when one party to a dispute is a top-level terrorist about to be targeted by a military strike. It is true that judges do sometimes handle swifter matters, such as authorizing search and arrest warrants, but judges typically have a deep understanding of criminal law and are familiar with the issues that often arise in the criminal context. Few judges are prepared to make a quick judgment on military matters.
But if judicial pre-approval of military orders isn’t a realistic means of regulating targeted killings, DOJ’s framework calls for the other extreme — leaving the decision to kill a senior enemy combatant in the hands of “high-level” executive branch officials who are ultimately responsible to the President. This framework ensures both that decisions can be made swiftly and by officials with a broad understanding of both the details of a particular operation and of the laws governing war. But it also means that there is little external check on an executive branch eager to use its power irresponsibly. And even if you trust President Obama to not abuse a power to order targeted killings, there is no guarantee that the next president can also be trusted.
Between the two extremes, DOJ is probably right as a matter of law that the administration can act without independent oversight. Regardless of the wisdom of the broadly worded Authorization for Use of Military Force against Al-Qaeda and related terrorist forces, the AUMF is a duly-enacted Act of Congress, and the President’s wartime power is at its apex when he acts “pursuant to an express or implied authorization of Congress.”
But the current state of affairs is dangerous at best, and it does not have to be the only way. Since at least as far back as the Supreme Court’s 1804 decision in Little v. Barreme, Congress has had the power to prevent the president from waging war in certain ways. Without endorsing any particular proposal, here are five ways Congress could step into the breach: