Due Process and Targeted Killing of Terrorists

47 Pages Posted: 26 Feb 2009 Last revised: 26 Feb 2010

Afsheen John Radsan

William Mitchell College of Law

Richard W. Murphy

Texas Tech University School of Law

Date Written: March 1, 2009

Abstract

Targeted killing is extra-judicial, premeditated killing by a state of a specifically identified person not in its custody. States have used this tool, secretly or not, throughout history. In recent years, targeted killing has generated new controversy as two states in particular - Israel and the United States - have struggled against opponents embedded in civilian populations. As a matter of express policy, Israel engages in targeted killing of persons it deems members of terrorist organizations who are involved in attacks on Israel. The United States, less expressly, has adopted a similar policy against al Qaeda - particularly in the border areas of Afghanistan and Pakistan, where the CIA has used unmanned Predator drones to fire Hellfire missiles to attempt to kill al Qaeda leaders. This campaign of Predator strikes has continued into the Obama Administration.

This Article explores the implications for targeted killing of the due process model that the Supreme Court has developed in Hamdi v. Rumsfeld and Boumediene v. Bush for detention of enemy combatants. Contrary to a charge leveled by Justice Thomas in his Hamdi dissent, this model does not break down in the extreme context of targeted killing. Instead, it suggests useful means to control this practice and heighten accountability. Our primary conclusion in this regard is that, under Boumediene, the executive has a due-process obligation to develop fair, rational procedures for its use of targeted killing no matter whom it might be targeting anywhere in the world. To implement this duty, the executive should, following the lead of the Supreme Court of Israel (among others), require an independent, intra-executive investigation of any targeted killing by the CIA. Such investigations should be as public as is reasonably consonant with national security. Even in a war-on-terror, due process demands at least this level of accountability for the power to kill suspected terrorists.

Keywords: due process, targeted killing, enemy combatant, war-on-terror, Boumediene, Hamdi

Suggested Citation

Radsan, Afsheen John and Murphy, Richard W., Due Process and Targeted Killing of Terrorists (March 1, 2009). Cardozo Law Review, Vol. 31, p. 405, 2009; William Mitchell Legal Studies Research Paper No. 126; Texas Tech Law School Research Paper No. 2010-06. Available at SSRN: https://ssrn.com/abstract=1349357

Afsheen John Radsan

William Mitchell College of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

Richard Wyman Murphy (Contact Author)

Texas Tech University School of Law ( email )

1802 Hartford
Lubbock, TX 79409
United States
806-742-3990 ex.320 (Phone)

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