Scholars frequently discuss the domestic legality of the U.S. government’s targeted killing program. That debate boils down to two key questions: first, is the Executive authorized to undertake targeted killings and under what circumstances, and second, do domestic legal constraints either prevent him from engaging in targeted killings or limit the ways in which he may do so.
II. Domestic Legal Authorization for the U.S. Government’s Targeted Killing Program
Many, including former State Department Legal Adviser Harold Koh, have argued that much, if not all, of the U.S. government’s targeted killing program has been affirmatively authorized by Congress with the Authorization for the Use of Military Force (AUMF), which authorizes the Executive to use force against those enemy combatants that fall within the statute’s ambit.
The U.S. Government (via Eric Holder and Harold Koh) itself has stated that "[i]n response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups," thus emphasizing the AUMF as a primary basis for its targeting authority. In addition, Holder asserted, "[t]he Constitution [itself] empowers the President to protect the nation from any imminent threat of violent attack." Thus, en toto, the USG has asserted several bases of authority for its targeted killing program, namely (according to a leaked DOJ White Paper), "[the President's] constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against [al-Qa'ida and associated forces], and the existence of an armed conflict with al-Qa'ida under international law."
Curtis Bradley and Jack Goldsmith, in their textbook on foreign relations law, and a note in the Vanderbilt Journal of Transnational Law counter that the AUMF, to the extent that it authorizes targeted killings at all, may not be sufficient to authorize the entire scope of the U.S. government’s targeted killing program undertaken so far, thus perhaps rendering at least some iterations of the U.S. government’s targeted killing program impermissible. Note, too, that a White House fact sheet released alongside President Obama's May 23, 2013 speech on counterterrorism asserted that the President would "engage Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate."
Nevertheless, Bradley and Goldsmith explain, even if Congress did not authorize the U.S. government’s targeted killing program with the AUMF, the President could in theory act against terrorists presenting an imminent threat under the Covert Action Statute (CAS), 50 U.S.C. §413b. The CAS is potentially an important authorizing authority, as its scope extends beyond that of the AUMF, namely in that it is not limited to those terrorist groups linked to the September 11, 2001 attacks. In other ways, though, the CAS may be narrower than the AUMF. For instance, Robert Chesney sets forth the argument that the CAS merely authorizes that which is otherwise lawful under Article II, and thus does not expand the scope of the President’s authority. Consequently, the CAS, like the AUMF, may be insufficient to support the entire breadth of the U.S. government’s targeted killing policy.
More broadly, though, John Brennan and others have appeared to argue that the President has inherent, constitutionally based executive authority to to protect the nation against terrorist groups to the extent the post an imminent threat of attack. However, others, like the Vanderbilt note mentioned above, read the President’s Commander in Chief power more narrowly, claiming that it only authorizes a very narrow subset of the targeted killings undertaken by the U.S. government.
III. Domestic Legal Constraints on the U.S. Government’s Targeted Killing Program.
Irrespective of the source of the President’s authority, other domestic legal constraints arguably limit his ability to undertake targeted killings. These purported limitations are based in statute, Executive Order, and in the U.S. Constitution itself.
A. Statutory Limitations
As mentioned above, if the President derives the authority for the U.S. government’s targeted killing program from the AUMF or the CAS, then the program will be limited by internal constraints set forth within those statutes. For instance, although the AUMF does not contain any geographical limitation, its authorization for the use of force only applies to certain groups of people and thus excludes other targets from its ambit. Likewise, the CAS sets forth various reporting requirements and decision-making rules, which the President must comply with in order for his targeted killing program to be permissible under U.S. law.
B. Executive Order 12,333
Some, including Avery Plaw, Matthew S. Fricker and Brian Glyn Williams, argue that the U.S. government’s targeted killing policy violates the domestic assassination ban set forth in Executive Order 12,333. However, Harold Koh, as well as Cheri Kramer, Jordan Paust, and William C. Banks & Peter Raven-Hansen, and others, have countered that, under domestic law, those uses of force that are consistent with relevant laws of war, in other words those during armed conflict or in self-defense, do not constitute impermissible assassinations. If true, this means that E.O. 12,333 has little independent significance for the U.S. government’s current targeted killing program. Moreover, the President can, at any time, revoke or modify executive orders, such that, insofar as E.O. 12,333 poses any real bar to the U.S. government’s targeted killing program, the President is legally free to remove it at any time. Political limitations on such revocation, however, may be a different story.
C. U.S. Constitution – Due Process Limitation
In addition, some, like Richard Murphy & Afsheen John Radsan, claim that the U.S. government’s targeted killing program violates the U.S. Constitution. Most commonly, scholars argue that the U.S. government’s targeting policy constitutes a Due Process violation, either inherently, or in certain of its applications. More specifically, Mike Dreyfuss claims that if the U.S. government does not give individual targets “notice” before killing them, the U.S. government will have perpetrated a Due Process violation. Cf. Hamdi v. Rumsfeld, 542 U.S. 507, 597 (2004) (Thomas, J., dissenting). Others, like Samuel Adelsberg, argue that other aspects of the process used by the Executive Branch are impermissible, as the Due Process Clause mandates that a truly neutral decision-maker, as well as some inter-branch vetting, be used. Lastly, Murphy and Radsan, among others, allege that some sort of ex post judicial review of the Executive’s targeted killing decisions is required. Proposed policy prescriptions for these alleged issues are discussed elsewhere in this document library.
Nevertheless, Attorney General Eric Holder and others argue that the U.S. government’s targeted killing program does not violate due process. And, Bradley and Goldsmith argue that the question of whether or not a target received sufficient constitutional process may constitute a political question, such that U.S. courts will never impose any liability on the U.S. government for undertaking even an unlawful targeted killing. This seems to be one implication of Al Aulaqi v. Obama (D.D.C. 2010), where Judge Bates found that Anwar Al-Aulaqi's lawsuit seeking to enjoin the USG from targeting his son was non-justiciable under the political question doctrine. In particular, Judge Bates felt that “[j]udicial resolution of the ‘particular questions’ posed” would require [it] to decide complex issues such as “whether … Anwar Al–Aulaqi’s alleged terrorist activity render[ed] him a concrete, specific, and imminent threat to life or physical safety” and “whether there are means short of lethal force that the United States could reasonably employ to address any threat that Anwar Al–Aulaqi poses to U.S. national security interests.” These questions, Judge Bates said, would require the court take into account military, strategic, and diplomatic considerations – e.g. to “assess the merits of the President’s (alleged) decision to launch an attack on a foreign target” – that it was simply not competent to handle. Thus, the Due Process Clause may not limit the U.S. government’s targeted killing program much, if at all, as either a legal and a practical matter.
With respect to the targeting by the USG of U.S. citizens, Eric Holder (in a May 22, 2013 letter to Patrick Leahy, Chairman of the Senate's Committee on the Judiciary) and President Obama (in his May 23, 2013 speech on counterterrorism) acknowledged that the United States has, in the conduct of its counterterrorism operations against Al-Qaeda and associated forces, outside of areas of active hostilities, specifically targeted one U.S. citizen, Anwar al-Aulaqi. They also asserted that the USG is aware of three other U.S. citizens who have been killed in such operations (although they were not specifically targeted by the U.S.): Samir Khan, 'Abd al-Rahman Anwar al-Aulaqi, and Jude Kenan Mohammed.
The leaked DOJ White Paper makes clear the USG's belief that a lethal operation against a U.S. citizen who is a senior operational leader of Al Qaeda or an associated force of Al Qaeda, in a foreign country, outside the area of active hostilities, would not violate due process. Applying the Supreme Court's Mathews v. Eldridge balancing approach, the White Paper considered that an "individual's interest in avoiding erroneous deprivation of his life is 'uniquely compelling'" but went on to find, citing Hamdi, that the "government's interset in waging war, protecting its citizens, adn removing the threat posed by members of enemy forces [was] also compelling." Ultimately, the White Paper explained, such a lethal operation would be permissible (i.e. the government's interest would outweigh weigh the private interest of the targeted citizen at issue), at least (1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against he United States; (2) where a capture operation would be infeasible (and where those conducting the operation continue to monitor whether capture becomes feasible); and (3) where such an operation would be conducted consistent with applicable law of war principles. Eric Holder, too, set forth a similar determination in a 2012 speech at Northwestern. The President in his May 23, 2013 counterterrorism speech reiterated that view.
D. U.S. Constitution – Other Applicable Constraints
Richard Murphy, as well as the Vanderbilt note discussed previously, argue that the U.S. government’s targeted killing policy is impermissible under the Fourth Amendment. Mike Dreyfuss claims that American targeting policies violate both the Constitution’s vesting in Congress of the power to designate punishment for treason and the Eighth Amendment’s prohibition against cruel and unusual punishment. And Ryan Patrick Alford asserts that U.S. targetings contravene the Bill of Attainder Clause. But these claims are also contested and, again, may never be adjudicated in U.S. courts due to the existence of the political question doctrine and other legal limitations. As mentioned above, in Al Aulaqi v. Obama (D.D.C. 2010) Judge Bates explained that adjudicating Al-Aulaqi's father's Fourth Amendment claim would require the court take into account military, strategic, and diplomatic considerations – e.g. to “assess the merits of the President’s (alleged) decision to launch an attack on a foreign target” – that it was entirely incompetent to handle.
The USG took care to dispute the alleged Fourth Amendment issue in its leaked DOJ White Paper. The DOJ explained that, "assuming that a lethal operation targeting a U.S. citizen abroad who is planning attacks against the United Staes would result in a'seizure' under the Fourth Amendment, such an operation would not violate that Amendment in the circumstances posted [by the White paper]." The White Paper applied the Supreme Court's Tennessee v. Garner "situation-dependent" balancing test, which requires "balanc[ing' the nature and quality of the intrusion on the individual's Fourth Amendment interest against the importance of the governmental interests alleged to justify the intrusion." The DOJ asserted that "at least in circumstances where the targeted person is an operational leader of an enemy force and an informed, high-level government official has determined that he poses an imminent threat of violent attack against the United States, and those conducting the operation would carry out the operation only if capture were infeasible, the use of lethal force would not violate the Fourth Amendment." In such circumstances, "the intrusion on any Fourth Amendment interests would be outweighed by the importance of the government interest that justify the intrusion," namely, "the interest in protecting the lives of Americans."
IV. Further Reading
- Samuel S. Adelsberg, Bouncing the Executive’s Blank Check: Judicial Review and the Targeting of Citizens, 6 Harv. L. & Pol’y Rev. 437 (2012).
- Ryan Patrick Alford, The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens, 2011 Utah L. Rev. 1203 (2011).
- William C. Banks & Peter Raven-Hansen, Targeted Killing and Assassination: The U.S. Legal Framework, 37 U. Rich. L. Rev. 667 (2003).
- Curtis A. Bradley & Jack Goldsmith, Foreign Relations Law (4th ed. 2011).
- Robert Chesney, Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate, 5 J. Nat’l Sec. L. & Pol’y 539 (2012).
- Steve Coll, Kill or Capture: Obama’s Troubling Targeted Killing Policy, New Yorker (Aug. 2, 2012).
- Mike Dreyfuss, My Fellow Americans, We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens Abroad, 65 Vand. L. Rev. 249 (2012).
- Toren G. Evers-Mushovic & Michael Hughes, Rules for When There Are No Rules: Examining the Legality of Putting American Terrorists in the Crosshairs Abroad, 18 New Eng. J. Int’l & Comp. L. 157 (2012).
- Jack Goldsmith, Fire When Ready, Foreign Pol’y (Mar. 19, 2012).
- Cheri Kramer, The Legality of Targeted Drone Attacks As U.S. Policy, 9 Santa Clara J. Int’l L. 375 (2011).
- Marty Lederman, The U.S. Perspective on the Legal Basis for the bin Laden Operation, Balkinization (May 24, 2011).
- Richard Murphy, Responses to the Ten Questions, 37 Wm. Mitchell L. Rev. 5062 (2011),
- Richard Murphy & Afsheen John Radsan, Due Process and Targeted Killing of Terrorists, 31 Cardozo L. Rev. 405 (2009).
- Jordan J. Paust, Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan, 19 Fla. St. J. Transnat’l L. & Pol’y 237 (2010)
- Avery Plaw, Matthew S. Fricker & Brian Glyn Williams, Practice Makes Perfect?: The Changing Civilian Toll of CIA Drone Strikes in Pakistan, 5 Perspectives on Terrorism 51 (2011).
- Editorial, The Drone Wars, Wall St. J. (Jan. 9, 2010).
- Note, Due Process Rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power, 44 Vand. J. Transnat’l L. 1353 (2011).