Targeted Killing: Drones

Three More (Ambivalent) Reflections on the Holder Speech

By Steve Vladeck
Monday, March 12, 2012, 12:03 AM

The more I think about Attorney General Holder's defense of targeted killings in his speech @ Northwestern last Monday--and the various reactions thereto--the more confused I become. To be sure, this confusion may merely be a testament to my own profound ambivalence on the underlying question. After all, I am not categorically opposed (as many are) to the proposition that the government hasthe power to use lethal force against its own citizens in certain (extremely limited) circumstances. At the same time, I am also not mollified by the contention that Awlaki's is an exceptional case. While there is every reason to hope that the U.S. government will seldom undertake such operations against its own citizens, that's only an aspiration. And in any event, it's not immediately clear to me why we shouldn't have similar concerns with regard to operations against non-citizens, even if some of the answers to the underlying legal questions come out differently. With that ambivalence in mind, I take a shot below the fold at three related observations on the speech--and hope folks will feel free to send me their reactions.

I.  Why Give the Speech in the First Place?

Honestly, this is the piece that confuses me the most. Contra Ben, it's not as clear to me that we actually learned anything significant from the Attorney General's speech last Monday that hadn't already been widely reported (e.g., by Charlie Savage as early as last October), or addressed in other speeches (e.g., Jeh Johnson's February 22 speech @ Yale). Given that one of the most searching criticisms of the Obama Administration's conduct on this point has been its refusal to turn over the alleged OLC memo articulating the legal rationale for the Awlaki operation (if not others), it's odd to think that such a politically careful White House would deliberately rekindle that fire through a speech that only provokes renewed calls for disclosure of such legal analysis.

Put another way, if the goal of the speech was to settle the matter or at least calm the waters, it seems to have had the opposite effect, no? And if the Administration remains disinclined to release the memo, why give another speech that only draws further attention to its absence?

To my mind, the only answer that makes any sense is that the Administration is hyper-sensitive to claims made by many, including Jack (in his new book), concerning the continuity between not just the substance of the Bush Administration's counterterrorism policies but the obsessive secrecy pervading them. On this view, caught between a desire not to look like their predecessors and an inability to release the memo itself, the speech may have seemed like the best compromise--providing for more public articulation of at least some of the internal considerations (and allowing more inferences to be drawn from that which was unsaid), while preserving the deniability of our role in kinetic operations in Yemen (which may itself be the very reason why publicizing the memo remains a non-starter). And so, suggesting that due process does not require judicial process, but that it is respected by the Administration at least in cases involving our own citizens (as evidenced in the criteria the Administration has developed), may have been the best the Administration could have aimed for.

If that's the answer for why, though, then the question is whether anything is accomplished by such a compromising approach. And that brings me to my second observation...

II.  Why is the (Alleged) OLC Memo Such a Big Part of this Conversation?

As noted above, I realize that many folks on both sides of this debate have fairly categorical substantive views on the legality vel non of targeted killing. And to that end, it's a bit of a cop out for those, like me, who really think the procedures are the key to the substantive question. But if we can agree that there are cases in which the government does have the ability to kill its own citizens (e.g., citizens fighting for Italy during World War II or resisting law enforcement with deadly force), then the question of how we decide which are--and which are not--appropriate cases does come center stage, and that is inexorably a question of process, not substance.

As Bobby suggested in his analysis of the speech last Monday, the Attorney General did at least pay lip-service to the Mathews test, and to the seven criteria that appear to be the government's prerequisites to the use of such force. But the real questions have never been about those seven criteria (most of which had been a matter of rough consensus for some time); it's been about the decisionmaking process.  Who decides? How? What goes into the question of whether the threat is "imminent," or, as importantly, that there is no feasible option for capture or other forms of incapacitation without undue risk? How much room is there for contrary views? How hard do we try to investigate other potential outcomes with the assistance of our foreign partners? What happens if/when we make a mistake? Etc.

Notwithstanding the Washington Post's analysisthat, to me, is what's behind calls for disclosure of the OLC memo. I suspect most who believe targeted killing is ever lawful would largely agree with the substance of the criteria to which the Attorney General alluded in his remarks. But the devil is in the (procedural) details, which we can only assume are a fairly substantial piece of the OLC memo's analysis.

Don't get me wrong: This is not where I join the chorus of folks calling for the memo to be released (although I agree that, in a perfect world, it should be). My point is merely that it's well-nigh impossible to seriously analyze and/or evaluate the Attorney General's speech without the memo, because nothing the Attorney General said last Monday sheds true light onto any of these questions.

III.  What Role for Congress?

Finally, if we accept that the Administration is (1) going to continue targeted killing operations; and (2) not likely to disclose the OLC memo anytime soon, then the question becomes how such power can and will meaningfully be checked in both the short- and long-term. There's an easy abstract answer, of course: Congress could step in--as Ian Millhiser suggested in a very thoughtful post last week on ThinkProgress's "Justice" blog.

But even if that were remotely feasible, what, exactly, could Congress do? With all due respect to the New York Times, I very much doubt a FISA-like process could work (even if it could be designed in a manner that avoids the myriad Article III concerns that would otherwise arise). There's something very different about seeking ex ante judicial approval for surveillance and seeking ex ante judicial approval for kinetic military operations.

Instead, I think the answer has to be ex post damages actions. My own view, as I've suggested before, is that Bivens should already provide for such remedies in appropriate cases, but the case law is decidedly contraindicated. But even without Bivens, if Congress is truly worried about the government's ability to remotely target and kill individuals far from any active theater of military operations, even an incredibly limited (and highly deferential) damages regime would presumably go a long way toward deterring government abuses in this field, and ensuring that we're doing more than merely paying lip service to the idea of "due process," even if/when qualified immunity and/or state secrets ultimately get in the way of recovery in individual cases.

Of course, I won't exactly hold my breath that Congress will be so moved anytime soon, both because of the politics of the moment and the difficulties of legislating substantive answers to the government's authority in this arena. But that, itself, is unfortunate. In his 1953 dissent in the Mezei case, Justice Jackson offered the following observation on the independent significance of process--one which I think is particularly trenchant, and which far too many contemporary observers have forgotten:

Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.