A New Court to Issue Targeted Killing Warrants?

By Benjamin Wittes
Monday, December 13, 2010, 3:02 PM

The New York Times has, for the second time, glibly proposed establishing a new court to authorize killing people. In an editorial today--I am not making this up--the paper publishes a detailed two-sentence road-map for this modest addendum to Article III:

We have argued for creating a court that operates in secrecy, like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States. The government could present its evidence to this court behind closed doors before putting a terror suspect on its target list.


Now when the Times says, "we have argued," it is using a rather grandiose word for what it has done in the past. What it means, if you follow the link, is that it has earlier mentioned, also in passing, this same idea--also in a fullsome pair of sentences:

The government could establish a court like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States. Before it adds people to its target list and begins tracking them, the government could take its evidence to this court behind closed doors--along with proof of its compliance with international law--and get the equivalent of a judicial warrant in a timely and efficient way.

The basic point animating the idea seems to be that the government has to go to a judge to conduct FISA surveillance against Anwar Al Aulaqi, and there's a special court to hear that request. So it should have to go to a judge to kill Anwar Al Aulaqi, and there should be a special court to hear that request too. Simple, right? A little too simple.

I won't dwell on the concern that such a system would erode the executive branch's authority over targeting. It surely would do that, and one doesn't have to be Dick Cheney to think that the Commander in Chief Clause might have something to say about targeting decisions. My real concern about this idea is that it would corrupt the judiciary. Can you imagine a court devoted to authorizing the government to kill people? I've sat through a lot of editorial board meetings over the years, but I'm having a hard time imagining the one in New York that led the Times editorialists to the notion that this was an appropriate role for Article III judges. The very idea brings to my mind Justice Robert Jackson's famous words, admittedly a bit out of context here:

A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle . . . . The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. . . . A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.

To be clear, I'm not saying that any of the targeted killings in which this or the last administration has engaged were unlawful; I suspect if I knew the facts, I would regard them as comfortably within lawful targeting discretion. But the last thing I want is for judges to sully themselves with ordering deaths that even might prove illegal. Some targeting, after all, will prove to be  based on faulty information. And while erroneous targeting is a problem for the military and the CIA, it happens in wartime. People die by accident, and rules of targeting accept that. It's different for the judiciary. A judge who signed an order authorizing an erroneous killing--or one with unanticipated civilian casualties--doesn't get to say that collateral damage sucks, but there it is. She would be an impaired figure, and rightly so, particularly if there were questions that in retrospect she should have asked but didn't think of at the time. Judicial review here can only serve to create a body of law normalizing killing and to relieve the executive branch of some measure of its responsibility for getting these cases as right as it can.

Columbia law professor Matt Waxman, in an email this morning, pointed out an additional irony in the Times editorial--one I am embarrassed not to have noticed myself. "If they see that solution as pragmatically, legally, and morally suitable for lethal targeting," he wrote, "wouldn't they also regard current Guantanamo processes, which are now more transparent and procedurally robust than what they call for, as acceptable for many detentions?" Matt's point is very apt. The Times has no time for arguments that we should craft a careful, serious regime of judicial review for detaining people; indeed, it complains that "President Obama has yet to forswear the idea of indefinite detention without charges." The arguments of people like, well, me that as long as we are in the detention business, we may as well have clear rules and review don't move the Times at all. Yet then, without apparent cognitive dissonance, the Times can throw out the idea of a judicial regime's meting out death without charges. As long as we're in the business of killing people, the editorialists seem to be saying, "the administration [should] work with Congress to allow some form of judicial review." Pardon me if I'm experiencing whiplash.

As one of those people who believes in this logic as it pertains to detention, count me out as to killing people. Why the difference? For one thing, adjudicating fact patterns based on adversarial proceedings leading to incarcerations is not altogether alien to the judicial task. Considering ex parte requests to kill people is. For another thing, when a judge authorizes a detention that turns out to be wrong, he can correct the mistake. He can apologize. A well-crafted statutory scheme could even authorize compensation in such cases. There are means, in other words, by which the judiciary--which has to be ultimately about law and justice, not expediency--can try to make it right. But an errant Predator strike is not an act of law. It is an act of state gone wrong. And the judge who sends it is not really a judge at all. He is an officer of the Directorate of Operations engaged in a covert action.