Targeted Killing of U.S. Citizens at Odds with the Constitution

In a recent post on the blog TomDispatch.com, Peter Van Buren published a piece condemning the United States’ drone policy, particularly in regards to the recent news that the U.S. is considering the targeted killing of a U.S. citizen abroad. In the piece, “Drone Killing the Fifth Amendment: How to Build a Post-Constitutional America One Death at a Time,” Van Buren explores the constitutionality of the U.S.’s drone policy, and argues that “They’ve thought about it [targeted killing]. They’ve set up the legal manipulations necessary to justify it.”

It is no great secret that both the legality and the morality of targeted killing has been a hot topic in recent months, Van Buren argues that the practice is at odds with the values our country is based on, as the targeted killing of a U.S. citizen denies him the due process guaranteed by the Fifth Amendment. Essentially, Van Buren’s point is that we are in a post-Constitutional America, and have strayed dramatically from the values of our Founding Fathers.

As someone who tends to agree with the loose constructionist interpretation of the Constitution, I side with Van Buren on this. Broadly, I believe that a document written over 200 years ago was never intended to be followed to the letter. Try as they might, our Founding Fathers had no way of predicting what our country would look like and the problems we would face in 2014. What Van Buren is saying, however, is that we have strayed too far from the values our country was built upon. While one would be hard-pressed to find the phrase “targeted killing” or “drone strikes” anywhere within the four corners of the Constitution, we still need to abide by the guiding principles outlined in the document. We are allegedly a country that values freedom, liberty, and due process. If we kill our own citizens in drone strikes, is that truly constitutional?

Kelly Ann Taddonio
Senior Research Fellow

February 18, 2014

 

Signature Strikes are as Old as War

Arianna Huffington recently wrote on the Huffington Post about the Obama Administration’s use of so-called “signature strikes” by drones in Pakistan and elsewhere. Underlying much of her criticism is a basic assumption that signature strikes are a new form of targeting that is more pernicious than the more targeted strikes that we are used to. This assumption is perfectly true, if your sense of history goes back no more than about decade.

Signature Strikes are the norm, not the exception

The truth is that what we now call “signature strikes” used to just be called “targeting the enemy.” The practice is in fact so old that it is impossible to trace its origins. In fact, some of the earliest accounts of armed conflict speak about the use of “signatures” or qualities that allow a soldier or government agent to identify an unknown person as a probable member of an enemy group. The Old Testament is replete with examples, including David’s use of foreskins to identify Philistines, and the Gileadites’ use of the word “shibboleth” to identify and kill the Ephraimites.

In fact, knowing the identity of your enemy with any precision was extraordinarily rare until the last ten years. Granted, targeted killing of one sort or another (even leaving aside clear cases of political assassination) has existed for time immemorial as well, but was definitely not the norm. It was instead an unusual undertaking, and attempts rarely led to success. For eons, the standard approach to warfare has been to assemble together a large group of men, few of whom are expected to know any of the enemy by name (with the exception of their king or president), and effectively set them loose on a collection of the enemy population. In later more “civilized” times, these armed groups would mostly only attack one another, although this was never a perfectly uniform practice. These soldiers, whether professionals or conscripts, would not identify an enemy by name, position, or other individualized characteristic. It was always enough that they “look like the enemy.”

This is what has always been expected of soldiers, and to a great extent, still is. We now have more rigorous standards of conduct, laws to mitigate civilian damage done during an attack on enemy forces, and clearly spelled out rules of engagement. Even still, in my four years in US Army’s 82nd Airborne Division, including deployments to Iraq and Afghanistan, I was shown a picture of an individual enemy that we planned to kill or capture on a handful of occasions. The rest of the time we were just expected to use the same standard as is used for pornography: you know it when you see it. In other words, we were expected to use the ground combat equivalent of signature strikes. Warfare is just not that individualistic, even today.

Signature strikes may not be new, but our new techniques are helping reduce civilian harm, despite the “evidence”

Still, the US military and intelligence community is becoming impressively proficient at identifying and locating individual members of the enemy. Despite the much publicized (but mostly classified) report recently published by the Center for Naval Analysis’ Larry Lewis, most reliable evidence says that drones, even when used for signature strikes, are much more discriminant and precise, killing or injuring fewer civilians per strike, and far fewer per militant killed. Much of the evidence to the contrary is in fact gained from anonymous sources linked to the Pakistani military or to the militants themselves. Given the sourcing–the enemy and their patrons–it is a little surprising that the claimed number of civilian deaths is in fact so low, even including signature strikes. Maybe these sources are willing to double the number of civilian casualties, but tripling it seems a bridge too far (except for a stalwart few who transparently either fudge their numbers or need to retake middle school pre-algebra).

As a case in point, even the Bureau of Investigative Journalism, who appears at first to be an honest broker of information on drone strikes, upon deeper investigation, are highly biased. They reported yesterday that the number of civilian deaths due to drone strikes in Pakistan has been underreported by 81. They describe this as a “high civilian death toll,” but for a campaign waged over the course of nine years, this is actually an extremely low death toll. I challenge anyone to find another military campaign that lasted nine years yet killed fewer than 45 civilians per year (according to their numbers). However, even these numbers are suspect, as can be seen from their source document, a leaked Pakistani summary of drone strike casualties. Setting aside the arithmetic problems (4+5=8? Apparently, in Pakistan. See line 78), several problems indicate unreliability.

First, the number of civilians killed is not always as clear as the Bureau would have it. In the vast majority of “civilian” casualty cases, the number of civilians are not specified, and is indictated only by inclusion of the word “civilian” in the remarks column. It is not clear whether this means all dead and wounded were civilians or whether one or some of them were. However, in other cases, the number is given, or the remarks indicate that they were “all civilians.”

Second, and more damning, only two references were made to militants out of the nearly 750 dead in 84 attacks. However, one entry refers to “miscreants,” and several others list foreigners as among the dead. This raises the suspicion that the number of militants killed is actually under-reported, and thus the possibility that some listed as civilians are in fact militants.

Third, and worst of all for the reliability of this information, it is apparently obtained secondhand and from afar. Several of the entries indicate that the information is “reported” or “yet to be received.” Local elders and even local political administrations are often pro-Taliban or otherwise compromised (e.g. by bribery which constitutes the majority of their income).

The hard truth is that coming to even a good, ball-parked number of civilian dead is extremely difficult. But what is clear is that the US drone campaign, even when using signature strikes, has a remarkably low rate of civilian casualties when compared to other available options, given their advanced optics, long loiter times, and precision munitions. Those who advocate against drones tend to focus on the technology, when what they are actually opposed to is the use of force in general. This is a laudable sentiment, but these same folks never seem to be willing to offer workable alternatives.

The truth is that drones are here to stay, because they are an extremely useful, discriminating weapon system. Given that we are involved in a protracted conflict with an enemy that hides among the civilian population, our drones and drone pilots are doing a remarkable job. Of course, as I will describe in a later post, relying solely on drones to win this conflict for us is in the end counterproductive. More on that soon.

 Paul W. Taylor, Senior Fellow
Center for Policy and Research

Pakistani Taliban will not attend peace talks, citing drone strike

After the recent drone strike in Pakistan’s North Waziristan region,  the Pakistani Taliban (Tehrik e  Taliban Pakistan, or TTP) initially refuted claims that their number two commander and chief military strategist, Wali ur-Rehman, had been killed. The TTP have since admitted that Rehman was indeed killed in the strike, and cite that strike as the reason for refusing to attend the scheduled peace talks with the Pakistani government.

The Taliban’s spokesman blamed Pakistan’s civilian government for failing to put a stop to the CIA-run strikes:

“We announce an end to our peace overtures because we believe that the Pakistani government is equally involved in the drone attack,”

It has always been reasonably clear that the talks were not going to lead to much anyway, and it is likely that this simply presented the Taliban an excuse to pull out while appearing to take the high road. However, reports indicate that if anyone in the Pakistani Taliban was open to serious peace talks, it was probably Rehman.

Some here at home have also criticized the strike, since they see it as a breach of President Obama’s newly announced changes in our drone policy, first because it was run by the CIA rather than the DoD, and second because there is no indication that Rehman posed an imminent threat of the type Obama’s new policy would require for targeted killing. However, according to Foreign Policy’s Situation Report, the adoption of the new rules is not a simple matter of flipping a switch somewhere in the Oval Office:

“there is no timeline when it comes to migrating drone operations to the DOD. ‘You don’t move it overnight,” said the former senior official.’ “

Paul W. Taylor, Senior Fellow
Center for Policy & Research

Drone Courts and Transparency

On March 31, Greg McNeal, a national security law professor at Pepperdine, spoke with NPR’s Weekend Edition about targeted killing accountability and transparency, including the possibility of a drone court. A short clip is available at Lawfare, where McNeal has been blogging on drones and targeted killing for a couple of months. I haven’t followed his work at Lawfare (though I will assign my self the task of catching up), but I am heartened to hear that he appears to agree with the stance I have taken in previous posts on this site (here, and here, and here), and for many of the same reasons. He goes on, however, to very insightfully explain the dynamics that cause Congress to be, heretofore, unwilling to draw red lines on drones and targeting killing abroad.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Seeking Sanity in the Drone Debate

Drone bashing seems to be in vogue these days, especially in on the liberal end of the media spectrum. Many of these critiques are based on faulty information or focus entirely on the most extreme examples or hypothetical situations, such as whether the government could target a US citizen sitting at a Starbucks in NYC. Of course, these arguments are feed by our own elected officials, sometimes of the conservative bent (I’m pointing at you, Rand Paul).

I would like to point out one beacon of sanity among these shrill arguments. Hassan Abbas, in his article at the Atlantic, criticizes US drone policy in Pakistan, does a remarkable job of producing a relatively balanced argument, while still clearly landing on the liberal end of the spectrum. I don’t agree with all of his assessments, or even all of his “ground realities.” For example, it is particularly questionable that we know that around 50-60% of all drone victims have been civilians. Verifying just the numbers is a difficult task, and classifying the victims into combatants and civilians even harder–and his reliance on “local estimates” falls prey to his own critique of the bias in other studies.

However, I actually do agree with his basic assessment of the situation. The use of drones allows policy-makers to feel like they are doing something about the situation, while they are in fact ignoring the underlying issues. For example, as Abbas notes,

“There were roughly 350 drone strikes in the tribal areas since 2004, at an exorbitant cost (even though drone strikes offer a cheaper option in comparison to “boots on ground”). But how many schools were opened in the region over the same period of time? The answer is distressing, as the number of schools has actually declined sharply.”

This is a relatively common argument among the few drone critics who go beyond the temptation to focus on gore or appeals to sovereignty, and take a more nuanced view. But Abbas goes one step further, pointing out the role of those the US drone campaign targets:

“Damages to more than 460 schools throughout the tribal belt at the hands of Taliban has in fact displaced 62,000 children, including 23,000 girls, from school. It doesn’t require very high intelligence to guess that in the absence of schools, and with an increase in violence, what kind of future awaits these kids. Drone strikes may take out some of those who destroyed these schools, but that is hardly a sustainable solution to the larger problem.”

And in this, he is absolutely right. The situation in which the youth were placed in the 1980s and 90s was one of the factors leading to the rise of the Taliban. And as Abbas points out, drones can do little to protect the youth, and nothing to build them new school or provide quality teachers. The drone campaign doesn’t even try to do these things.

After all, our drone policy is basically a band-aid solution. It is designed to keep the leadership of al-Qaeda and the Taliban on the run, but has no hope of finally defeating either organization. However, it is folly to think that just because drones will not solve the security or humanitarian issues in Pakistan and Afghanistan, we should abandon the policy. That said, Abbas is perfectly correct that the solution is not sustainable. It must be augmented (and eventually entirely replaced) by policy directed at the human dimension.

One problem there, though: No one knows how to do that. Any ideas?

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Update on UN Drone Investigator

After a recent secret visit to Pakistan, Ben Emmerson, the U.N. special rapporteur on human rights and counter-terrorism (see my previous posts here and here), released a statement that the Pakistani government “emphasized its consistently-stated position that drone strikes on its territory are counter-productive, contrary to international law, a violation of Pakistan’s sovereignty and territorial integrity, and that they should cease immediately.” 

The US has previously relied on the contention that Pakistan consented to these strikes, and it has a lot of support to back it up. In fact, diplomatic cables released by Wikileaks confirm that Pakistani leaders did not oppose the use of drones on their soil, and even encouraged it. It is true that Pakistani officials have made public statements that the attacks are not welcome and should stop. But as pointed out by Ben Farley in his thoughtful piece on the D.C. Exile blog, it is not always clear from public sources when consent has been given or revoked, as when then-Yemeni President Ali Abdullah Saleh consented to US drone strikes on its territory, but under the pretense that they were the actions of his own air force. No one who witnessed such a strike would therefore know that it was not a breach of Yemeni sovereignty.

Emmerson, however, has apparently adopted a black and white view of the issue after his meetings with Pakistani officials, claiming that “[t]he position of the Government of Pakistan is quite clear. It does not consent to the use of drones by the United States on its territory.” But it is not clear.

Ben Farley’s conclusion is a more thorough and eloquent presentation of my own thoughts on the issue than I could hope to achieve:

Pakistan’s behavior in general has been at best ambiguous.  Despite having the capacity to “‘trace and detect any aircraft’” operating near its border with Pakistan and (apparently) the ability to shoot such aircraft down, there have never been reports of Pakistan shooting down a U.S. drone.  Although the absence of public reports of such downings is not dispositive, the fact that U.S. drones carry out any strikes even though they are slow moving, are not maneuverable, and carry no air defense countermeasures, strongly suggests that Pakistan ischoosing not to interdict drones.  Additionally, Pakistan has a modern air force that is at least as capable as the Iranian air force but, while Iran has chased a number of U.S. air force drones over the Persian Gulf in recent months, there have never been any similar reports from Pakistan.  Finally, and perhaps most tellingly, Pakistan has not taken the sort of concrete steps vis-à-vis the United States for drone strikes as it has for other violations of Pakistani sovereignty.  For example, in November 2011, a frontier incident between U.S. and Pakistani troops (that resulted in the death of 26 Pakistanis), led Pakistan to both close its border with Afghanistan to NATO convoys and to kick U.S. drones out from their Pakistani bases.  Pakistan also upgraded its Afghan-border air defense systems.  Similarly, after a CIA contractor killed two Pakistanis in January 2011, Pakistan ousted all CIA contractors and reduced the number of U.S. special operators allowed in Pakistan for training missions from 120 to 39.  Not only has Pakistan not taken such steps in response to U.S. drone strikes, at least until the Wall Street Journal report at the end of September 2012, Pakistan  continued to clear the parts of its air space in which the CIA indicated it would conduct drone strikes.  That is to say, not only is Pakistan not intervening to prevent drone strikes, it is taking affirmative steps to facilitate those strikes.  Thus, Pakistan’s behavior at least renders its public statement ambiguous and, more likely, supersedes those statements altogether.  Again, consent must be clearly stated but clearly stated to the recipient of that consent not the outside world.

If the United States is operating without Pakistan’s consent within Pakistan, it is violating Pakistan’s sovereignty—and it may be violating international law.  However, Emmerson’s conclusion notwithstanding, it is far from clear that, as a matter of international law, the United States is violating Pakistani sovereignty.

 

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Former DOD Lawyer Frowns on Drone Court

Last week Jeh Johnson, the general council for the Department of Defense during President Obama’s first term, warned at a conference at Fordham Law School that the President’s targeted killing policies breeds mistrust among the public:

“The problem is that the American public is suspicious of executive power shrouded in secrecy. In the absence of an official picture of what our government is doing, and by what authority, many in the public fill the void by imagining the worst.”

However, he was skeptical about recent calls for a “drone court” to review and approve or deny targeted killing decisions:

“To be sure, a national security court composed of a bipartisan group of federal judges with life tenure, to approve targeted lethal force, would bring some added levels of credibility, independence and rigor to the process, and those are worthy goals.”

“But, we must be realistic about the degree of added credibility such a court can provide. Its proceedings would necessarily be ex parte and in secret, and, like a FISA court, I suspect almost all of the government”s applications would be granted, because, like a FISA application, the government would be sure to present a compelling case. … [While] the New York Times editorial page promotes a FISA-like court for targeted lethal force, it derides the FISA court as a ‘rubber stamp’ because it almost never rejects an application. How long before a ‘drone court’ operating in secret is criticized in the same way?”

Apparently not long, since I have already raised this criticism in a previous post. However, I coupled this criticism with a proposed solution: using ex post review, rather than ex ante. By removing from the judge’s consideration the concern for the pressing national security need involved in deciding whether a proposed target is an imminent threat, ex post review would allow the judge to be more critical of the Administration’s case, and make the court less likely to become another “rubber stamp.”

Mr. Johnson raised other several issues with the concept of a national security court for targeted killing decisions, as well. Interestingly, all of these concerns would be eliminated or greatly mitigated by removing the assumption that the court would authorize the killings, rather than ratify them afterward.

First, Johnson notes, as others have, that judges would be loath to issue the equivalent of death warrants, first of all on purely moral grounds, but also on more political grounds. Courts enjoy the highest approval ratings of the three branches of government, yet accepting the responsibility to determine which individuals may live or die, without that individual having an opportunity to appear before the court would simply shift some of the public opprobrium from the Executive to the Judiciary. However, if the court exercised ex post review, it instead would be in its ordinary position of approving or disapproving the Executive’s decisions, not making its decisions for it.

Another concern raised by Johnson is that the judges would be highly uncomfortable making such decisions because they would be necessarily involve a secret, purely ex parte process. While courts do this on a daily basis, as when they issue search or arrest warrants, the targeted killing context stands apart in that the judge’s decision would be effectively irreversible. Here again, the use of ex post process would free the courts from this problem, and place it in the executive (which includes the military, incidentally, an organization which deals with this issue as a matter of course).

Johnson also notes that even the determination of the facts is fraught with problems. The first three of Holder’s criteria for the legality of a targeted killing operation, feasibility of capture, imminence of threat, and senior leadership in an enemy organization, are time-sensitive determinations. Feasibility, Johnson notes from personal experience, can change several times in one night. That imminence may change over time is obvious to anyone with a dictionary. And while a target’s position as a senior leader in al-Qaeda is unlikely to change very often, it does on occasion (take the case of Mokhtar Belmokhtar). Requiring a court to determine these facts in advance would also require that the executive would have to notify the court when any change has occurred that might effect that determination. Meanwhile, use of ex post review would allow the court to look at a single point in time, when the executive “pulled the trigger” on the operation, thus crystallizing the facts and obviating this problem.

The last of the Holder criteria, too, causes problems. This criterion requires that the operation be executed in compliance with the law of war. Of course, this is capable of determination only after the fact. Thus, no ex ante review will be able to determine if this requirement is satisfied. An ex post review, however, could.

Johnson also raised a very significant separation of powers concern. While the President’s duties and powers are not well enumerated in the Constitution, one thing is made clear: the President is the Commander in Chief of the Armed Forces. According to Johnson, the President therefore cannot abdicate his responsibilities as Commander in Chief to another branch of the government, nor can Congress remove those powers to itself or the Judiciary. While this is not an entirely settled question of law (note the War Powers Act and Congress’ power of the purse strings), it can be easily avoided by conducting the review ex post. After all, ex post review of the execution of nearly any of the President’s powers is fully within the authorities of the Judicial Branch.

Johnson also notes that any requirement for ex ante review of a national security issue will require an exception for exigent circumstances. Johnson asks, “is it therefore worth it?” Without coming to a conclusion on this question, ex post review would obviate the concern. No exigent circumstances can occur after the the deed is done.

Lastly, there is the concern of creating perverse incentives: whether a person’s name or identity is known has never been a factor in determining the legality of targeting an otherwise-lawful military target. But by creating a separate legal regime for known targets, we could create a disincentive to collect information about a target. We do not want a military or intelligence agency that keeps itself intentionally uninformed. Nor do we want to halt a military operation in progress simply because one of the targets is recognized late. Conducting the review ex post would not eliminate these issues, but it would substantially mitigate them. The military (or CIA, if it keeps its program), would not fear an interruption of its operations, and could even have an incentive to collect more information in order to later please a court that has plenty of time to look back at the past operations and question whether an individual was in fact targeted.

Not mentioned in Mr. Johnson’s comments, but related to his concern regarding perverse incentives, is another concern. The Executive, or some agency within it, may attempt to evade the jurisdiction of the court by claiming that it did not “specifically target” the individual, but was targeting under general constitutional authorities “someone” that appeared to be an imminent threat to the US–and now the case is moot. No court could enforce its jurisdiction before it knows that the individual is targeted, but it can enforce its jurisdiction after the targeting is brought to completion. In an ex post review, if the claim is made that the killing was not “targeted,” and thus that no review is necessary, the court will be able to employ its power to determine its own jurisdiction to enquire into the process leading to the killing, which in this type of review would be half the job.

Thus, for each of Mr. Johnson’s concerns about the wisdom or legality  of a “national security court” to review targeted killing decisions, it is the reliance on ex ante review that causes all or most of the problem. However, ex-post review will give the public the assurance that it seeks that the Executive is not abusing and will not abuse its vast military might, while still providing it the room to carry out its responsibilities. Unfortunately, it is not something that many people seem to devote much attention to.

(The full text of Mr. Johnson’s address is here.)

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Gates Supports Drone Court

English: Official portrait of United States Se...

Official portrait of United States Secretary of Defense Robert Gates  (Photo credit: Wikipedia)

The number of high-profile officials and former officials who have voiced support for a court to review lethal drone operations is multiplying.

On Monday, former CIA Director and Defense Secretary Bob Gates told CNN that while he has long advocated the use of drones to monitor and target suspected terrorists, he also supports greater oversight.

Gates’ opinion will carry weight. As a career public servant who has served both Democratic and Republican administrations, he is perceived as a trustworthy source of non-partisan analysis. And because in the last two administrations he held high-level positions bearing directly on drone operations, he can be considered to have intimate knowledge of their uses, and their risks.

“I’m a big advocate of drones,” said Gates. While  he admits that innocent people are sometimes killed by drones, he says “the numbers, I believe are extremely small”. Given the limited options to confront the terrorists and insurgents in places like Pakistan, Gates still thinks that drones are the best option, explaining “You do have the ability to limit that collateral damage more than with any other weapons system that you have.”

But despite their efficacy, Gates agrees with the recent calls for some form of oversight panel or court:

“Whether it’s a panel of three judges or one judge or something that would give the American people confidence that there was, in fact, a compelling case to launch an attack against an American citizen – I think just as an independent confirmation or affirmation, if you will – is something worth giving serious consideration to”

Currently, the Senate Intelligence Committee is reviewing proposals for creating such a tribunal. However, no legislation has yet been started.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

A FISC for Drones?

With the confirmation hearings of John Brennan as Director of Central Intelligence, news related to the U.S. drone program is coming fast. This time it was made by Senator Diane Feinstein (D-CA), chairwoman of the Senate Intelligence Committee.

Both during the hearing and in comments to the press afterward, Sen. Feinstein suggested that she and other Democrats would be working to create a new court that would review the administration’s decisions on who may be targeted in lethal counter-terrorism operations. (I assume at that such a court would be given jurisdiction over all targeted killings, not just those conducted by drones, despite the common conflation of the two.)

The concept of a court or tribunal of some sort to review or provide oversight for targeted killing decisions, whether restricted to those targeting U.S. citizens or with a broader mandate, is not new (see, e.g., our previous post). However, this is the highest profile such suggestion that has yet been made.

In Sen. Feinstein’s conception, the court would be modeled after the Foreign Intelligence Surveillance Court (FISC), with the aim of increasing transparency and to correct public misconceptions about civilian casualties.

Such a court could also help to alleviate concerns that the administration is overly-permissive in its decisions to use targeted killing instead of other alternatives. For example, the editorial board of the New York Times writes, “Mr. Brennan’s assertions that the government only resorts to lethal force when ‘there is no other alternative’ is at odds with reports of vastly increased drone strikes.” An independent body which reviews such determinations would go a long way in ensuring that such concerns are addressed.

As an interesting aside, it seems that not everyone is concerned that President Obama is sliding into a Bush Doctrine approach. John Yoo wrote in the Wall Street Journal that “[t]he real story revealed by the [white paper released Monday] is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods.” However, this appears to be a minority view.

Ex Ante or Ex Post?

If the FISC forms the model for this targeted killing court, then the assumption would be that it would that the court would review the targeting decisions ex ante. That is, before the administration could act, it would have to produce for the court the evidence or intelligence gathered to support the targeting decision. The court would then review the evidence for some level of sufficiency before allowing the operation to move forward.

However, many of the suggestions for a tribunal to review these killings call instead for ex post review. This is the model required in Israel. The basic idea of this is generally that waiting until the operation is complete keeps the court out of the way of military or para-military operations, but still maintains some oversight.

Robert Chesney of Lawfare provided some very interesting points to consider about such a court, including whether the review should be ex ante or ex post. He falls on the side of ex ante, but some of his commentary actually seems to point in the other direction. First, he points out the all of the serious propositions would subject the nomination process to judicial review, not the “trigger pull.”  This temporally removes the judicial authorization from the final decision to kill, and in Chesney’s view eliminates the concern that the process will interfere with the execution of the operation.

I’m not sure that it does. Names may be placed on the list at any time, conceivably as the result of a time sensitive push within the intelligence community. While I am not an expert in the process of targeting decisions, I think that the executive may need to be able to act quickly on new information that indicates that a subject is targetable. Ex ante review would place an additional hurdle between the decisive intelligence and the operation. Chesney seems to realize this by admitting the need for an “exigent circumstances exemption.” But this exception would itself mean defaulting back to an ex post review.

Additionally, Chesney notes that “Some judges want absolutely nothing to do with this … due to hostility to the idea of judicial involvement in death warrants.  (And that’s without considering the possibility of warrant-issuing judges finding themselves the object of suit or prosecution abroad.)”

Judges would likely be much more comfortable with ex post review. Ex post review would free them from any implication that they are issuing a “death warrant” and would place them in a position that they are much more comfortable with: reviewing executive uses of force after the fact. While there are clearly parallels that could be drawn between the ex ante review proposed here and the search and seizure warrants that judges routinely deal with, there are also important differences. First and foremost is that this implicates not the executive’s law enforcement responsibility but its war-making and foreign relations responsibilities, with which courts are loath to interfere, but are sometimes willing to review for abuse.

Additionally, in search and seizure warranting, there an ex post review will eventually be available. That will likely not be the case in drone strikes and other targeted killings unless such a process is specifically created. There are simply too many hurdles to judicial review (including state secrets, political questions, discovery problems, etc) for the courts to create such an opportunity without congressional action.

Chesney also noted that executive officials involved in the nomination process would prefer an ex ante review to shield them from unexpected civil liability by the victims or their families. I’m sure that it is true that administration officials would like to have “certainty ex ante that they would not face a lawsuit.” However, this is not a guarantee that the courts can provide to the executive. As noted above, as with search and seizure  warrants, there are issues to consider after the approval of the executive action. Ex ante review does not allow for inquiry into important ancillary issues, such as the balancing of risk to civilian bystanders. Also, it provides no assurances that new, exculpatory intelligence forces a reassessment of the targeting decision. Only ex post review would achieve this.

There is also the problem that typified the FISC: permissiveness. Of the tens of thousands of FISA warrant requests, only a handful have been rejected. When allowing for modification of the requests, it is not clear whether any have been finally rejected. There is little reason to believe that the proposed “drone court” will be much different. It is far too likely that a court will hesitate to impede an operation that the executive believes is required to protect out national security. Once the operation is complete, however, the court will not be inclined to hold back its criticism on all manner of aspects of the operation, from the initial targeting decision to the final execution.

Lastly, as Chesney himself points out:

Of course, there is also the question whether creating any such system is constitutional in the first place, especially if the system is framed to encompass more than just US persons…

This may true for ex ante review, but one of the courts’ fundamental mandates reviewing the executive’s activities for abuse of its power. This is even true in cases involving military or foreign affairs, where the executive is given the widest latitude and enjoys the greatest autonomy.

I do share Chesney’s suspicion that a tort-based process in which victims seek damages is not the appropriate means of reviewing targeted killing decisions. However, I am certain that regardless of whether an ex ante review is used, some ex post review must be available. There are simply too many variables between the initial nomination and the final execution of the mission that should be subject to some independent review. Indeed, as a veteran, I know the value of lessons learned in after action reviews, but I also know how often these reviews are shortchanged or skipped altogether. An ex post judicial review will ensure that this does not happen here.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

Update to Targeted Killing Story

Yesterday, President Obama yielded to congressional demands that he release the OLC memo detailing his administration’s legal justification for the targeted killing of US citizens who they suspect are senior terrorists. This was document provided the legal basis on which the administration in 2011 targeted and killed Anwar al-Awlaki, an alleged senior leader of al Qaeda in the Arabian Peninsula, currently the most  dangerous of the various al Qaeda franchises.

While his administration had previously not been willing to even admit that such a memo existed, he has agreed to share the memo with the House and Senate intelligence committees. This was likely a move to temper opposition to the confirmation of John Brennan as Director of Central Intelligence.

Brennan has been a central figure in the Obama administration’s drone program, from being the first official to publicly acknowledge its existence to direct involvement in its administration. While a strong supporter of the drone program, he has also stated that he “would not be the director of a CIA that carries out missions that should be carried out by the U.S. military.”

Paul Taylor, Senior Research Fellow

Center for Policy & Research