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What’s Really Wrong With the Targeted Killing White Paper

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Tuesday, February 5, 2013 at 6:44 PM

There’s certainly a lot to say about the DOJ white paper on targeted killings, much of which has been said already (and well) by others (see Raff’s “Headlines and Commentary” post for links).  At the risk of being unintentionally repetitive, I offer below the fold my own (exasperated) reactions to last night’s release–and to the 16-page memo on its own terms:

I.  These Aren’t the [Rationales] You’re Looking For…

First, the white paper is thoroughly disappointing. I’m one of the many who have been calling for quite some time now for the Obama Administration to provide the public with a clearer and more detailed legal analysis supporting the various public statements made by, among others, Eric Holder, John Brennan, Harold Koh, and Jeh Johnson, with respect to the targeted killings program.

This ain’t it.

Unlike the 2006 wiretapping white paper, which offered a pretty detailed survey of the relevant legal authorities and the government’s views of how they did or did not constrain warrantless foreign intelligence surveillance, this white paper is short on detail–which, if nothing else, unintentionally fuels conspiracy theories about the true breadth of the power that the government might actually be claiming behind closed doors. In fact, I have to imagine that the <cough> alleged <cough> OLC memo on which this white paper is based is necessarily much more detailed and nuanced–and leaves much less room for such conspiracy theories. It would have to be if it explains how these general criteria are specifically satisfied in an individual case–and, in the process, it would be far more comforting, at least to me, to see the rigor in application of these otherwise vague generalities. Pity, then, that this is what we’re left to evaluate.

Indeed, whether because the Department of Justice has been tone-deaf to these criticisms or because it is too constrained by other considerations that are lost upon me, the fact that this is the white paper they’ve chosen to release suggests that they’ve totally missed the point of these demands for public justification: It’s the process that we’re all interested in–how, exactly, the government decides that the various criteria it articulates for these strikes are met, who is in the room when such decisions are made, and whether anyone tries to argue the opposite side. Accepting, as I do, that there are necessarily some number of cases in which the government may lawfully use lethal force even against its own citizens, the issue reduces to how the government decides that such a case is presented–and what checks there are to minimize false positives… Nothing in the white paper provides any further elaboration on this point–and because of that, it’s that much more mind-boggling that it took this long (and even then, only through a leak) for even this discussion to be publicly disclosed. After all, it’s not like anything in this white paper is classified…

II.  My Idiosyncratic View That the Substanive Discussion is Beside the Point

The above helps to explain why I think my friend Kevin Heller is picking the wrong fight over at Opinio Juris when he takes issue with the substantive international law discussion in the white paper. First, I suspect the discussion of imminence in the white paper has little to do with international law (at least in situations in which we’re in a non-international armed conflict with the group of which the target is a senior operational leader), and is more about the domestic constitutional analysis (more on that in a minute). Second, and in any event, as I mentioned above, I imagine that almost all of us would agree that there are some circumstances in which the government is allowed to use lethal force even against its own citizens. I also suspect we could reach a fair amount of consensus on the relevant criteria that should apply to justify such uses of force. This is why, per the above, I’ve always thought this debate was principally about the process questions, not the substantive ones. And, as noted above, the white paper is useless, if not counterproductive, on that point.

III.  Whither the Second Mathews Factor?

As for process… I wrote this post last March in response to Attorney General Holder’s speech at Northwestern, in which he gave a fairly full-throated defense of the targeted killing program. As I noted then, the Attorney General’s invocation of the balancing test for due process articulated in Mathews v. Eldridge had curiously omitted the second prong of that test, i.e., “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Just to be clear, this is the most important part of the Mathews test, since the other two prongs are the private interest and government interest, respectively. It’s the second prong of the Mathews test that actually cares about the risk of false positives, and whether that risk is sufficiently great so as to justify the additional cost of more process.

What’s telling about the white paper is that it repeats Holder’s speech (or, more likely, Holder repeated the white paper) word-for-word, including the categorical omission of the second Mathews factor [see the spillover paragraph at pp. 5-6.] There’s no discussion–none–of the risk of false positives under the existing procedures, or the potential cost of additional process. This turns the Mathews test on its head, for it suggests that the relevant question in any case is simply whether the balancing of the interests supports the already provided level of process–and not whether the error rate and/or cost of more process is at all relevant to that determination. Not only has the Supreme Court never so understood the Mathews test, but such an approach would convert an already controversial metric for “measuring” due process into a completely standardless one–and completely obfuscate the underlying principle that the government has an obligation to provide as much process as can reasonably be expected under the circumstances.

IV.  Whither Judicial Review?

That leads to my larger problem with the white paper. AG Holder’s speech last March was most famous for the following passage:

“Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

Many of us wondered, at the time, just where this came from–since it’s hard to imagine what due process could be without at least some judicial oversight.  On this point, the white paper again isn’t very helpful. The sum total of its analysis is Section II.C, on page 10, which provides that:

[U]nder the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations. It is well established that “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,” because such matters “frequently turn on standards that defy the judicial application,” or “involve the exercise of a discretion demonstrably committed to the executive or legislature.” Were a court to intervene here, it might be required inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

There are two enormous problems with this reasoning:

First, many of us who argue for at least some judicial review in this context specifically don’t argue for ex ante review for the precise reasons the white paper suggests. Instead, we argue for ex post review–in the form of damages actions after the fact, in which liability would only attach if the government both (1) exceeded its authority; and (2) did so in a way that violated clearly established law. Whatever else might be said about such damages suits, they simply don’t raise the interference concerns articulated in the white paper, and so one would have expected some distinct explanation for why that kind of judicial review shouldn’t be available in this context. All the white paper offers, though, is its more general allusion to the political question doctrine. Which brings me to…

Second, and in any event, the suggestion that lawsuits arising out of targeted killing operations against U.S. citizens raise a nonjusticiable political question is almost laughable–and is the one part of this white paper that really does hearken back to the good ole’ days of the Bush Administration (I’m less sold on any analogy based upon the rest of the paper). Even before last Term’s Zivotofsky decision, in which the Supreme Court went out of its way to remind everyone (especially the D.C. Circuit) of just how limited the political question doctrine really should be, it should’ve followed that uses of military force against U.S. citizens neither “turn on standards that defy the judicial application,” nor “involve the exercise of a discretion demonstrably committed to the executive or legislature.” Indeed, in the context of the Guantánamo habeas litigation, courts routinely inquire into the very questions that might well arise in such a damages suit, e.g., whether there is sufficient evidence to support the government’s conclusion that the target is/was a senior operational leader of al Qaeda or one of its affiliates…

Don’t get me wrong: Any suit challenging a targeted killing operation, even a post hoc damages action, is likely to run into a number of distinct procedural concerns, including the difficulty of arguing for a Bivens remedy; the extent to which the state secrets privilege might preclude the litigation; etc.  But those are the arguments that the white paper should’ve been making–and not a wholly unnuanced invocation of the political question doctrine in a context in which it clearly does not–and should not–apply.

V.  A Modest Proposal

This all leads me to what I’ve increasingly come to believe is the only real solution here: If folks are really concerned about this issue, especially on the Hill, then Congress should create a cause of action–with nominal damages–for individuals who have been the targets of such operations (or, more honestly, their heirs). The cause of action could be for $1 in damages; it could expressly abrogate the state secrets privilege and replace it with a procedure for the government to offer at least some of its evidence ex parte and in camera; and it could abrogate qualified immunity so that, in every case, the court makes law concerning how the government applies its criteria in a manner consistent with the Due Process Clause of the Fifth Amendment. This wouldn’t in any way resolve the legality of targeted killings, but it would clear the way for courts to do what courts do–ensure that, when the government really is depriving an individual of their liberty (if not their life), it does so in a manner that comports with the Constitution–as the courts, and not just the Executive Branch, interpret it. It’s not a perfect solution, to be sure, but if ever there was a field in which the perfect is the enemy of the good, this is it.

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