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:
Public Disclosure The first and simplest corrective is greater public oversight. An impartial, independently supported reviewer or review panel could be given full access to classified information, and then convey its opinion on the facts and justification of any strike, and the general Administration procedure, to the American public. The United Kingdom pioneered this model as a means of providing oversight for expanded police powers during the conflict with the Irish Republican Army in Northern Ireland, with some success. However, this procedure could at best only provide the public with more information about any individual strike after it happened rather than formally restrain any abuse of power by the President — and its record on the latter score in Northern Ireland is hardly spotless.
- Mandatory Consultation: Congress could also require a formalized, publicly understood executive or executive-legislative review process. This legislation would require consultation with and approval from some group (the National Security Council, the Cabinet, or a group of legislators) for any strike targeting American citizens, telling the public who, exactly, was making life-and-death decisions. There appears to already be something like this in place — according to Sen. Dianne Feinstein, the white paper released Monday night was a summary of the executive decision process for Congress’ consumption. However, until this procedure is public, there’s no guarantee that it provides real oversight. And even then, it’d be hard to know — as scholar Daniel Byman notes, Israel has a well-known consultation procedure for targeted killing, but one that’s bedeviled by controversy in part because there’s little independent legal oversight outside of the government itself.
- Special Courts: Byman recommends a third option on top of formalized executive and Congressional review: a special independent court, with members appointed by the Supreme Court, that would approve or deny requests to conduct targeted killing. The model here is the Foreign Intelligence Surveillance Act (FISA) courts that approve the wiretapping of individuals suspect of being foreign agents. This has the virtue of providing legal oversight, but abuse of the FISA system that began under the Bush Administration and continues under Obama proves they’re not necessarily strong checks. There’s also something deeply troubling about creating a judicial system designed explicitly to authorize the use of military force against American citizens.
- Lawsuits After-The-Fact: Congress could reform the byzantine laws surrounding state secrets to allow currently-existing courts to review the legality of any targeted killing after the fact. Currently, a legal thicket that one judge called a “catch-22″ allows the administration to legally hide its justification for striking American citizens, and has threatened to shoot down lawsuits that challenge this power using the “State Secrets” doctrine if they might expose “classified information.” Were Congress to reform the relevant laws, paving the way for lawsuits challenging the legality of a targeted killing after the fact, that might allow courts to set reasonable limitations on the practice by establishing clear precedents about the conditions under which a strike was justified. Of course, the courts could only review a strike after the fact, which means that in the event of a wrongful killing, the American citizen in question would still be dead.
- An Outright Ban: Finally, Congress could simply ban the premeditated, targeted killing of American citizens. This law would allow for killing if either 1) troops attempting to apprehend the citizen are engaged by hostile forces or 2) if said citizen was part of a conventional military force actively engaged in combat with American forces rather than a terrorist organization. But if the government is right that sometimes, the only way to eliminate serious terrorist threats posed by citizens is a targeted killing, this could come at a serious cost in American lives.
There is a simple explanation for why America has not employed any one or combination of these meaningful checks on targeted killings — Congress is virtually incapable of governance. The AUMF was enacted in the immediate wake of the 9/11 attacks, a time when few lawmakers were eager to push back against their nation’s well-justified rage. In cooler times, however, Congress is barely able to stave off default or keep the government from shutting down. Eleven Senators asked the Obama Administration to release its full legal memo justifying the killing of American citizens, but asking for a justification isn’t the same thing as a real move towards oversight. Designing a complex, nuanced regime intended to balance America’s need for swift action against its equally important need to check its own power may be well-beyond our dysfunctional legislature.