Retrieving the Role of Accountability in the Targeted Killings Context: A Proposal for Judicial Review

Abstract

The U.S. government unexpectedly offers virtually no protection for its citizens from assassination — at least in the case of Anwar al-Awlaki. Despite having been born in New Mexico and not formally renouncing his U.S. citizenship, Al-Awlaki was killed in a targeted assassination without any public constitutional or statutory process. On October 8, 2011, Charlie Savage of the New York Times reported about a classified Office of Legal Counsel opinion issued under the Barack H. Obama administration that purported to provide a legal justification for the targeted killing of an American citizen without prior process. Authored by Martin Lederman and David Barron, the June 2010 memorandum advised the President that "Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him."

There has been much written journalistically on al-Awlaki and academically on targeting foreign leaders. The literature does not deal specifically with the domestic legal challenges and the rights afforded to a U.S. citizen being targeted by the U.S. Government extraterritorially. Assuming that the President has the constitutional power to order targeted killings outside of Iraq and Afghanistan, and that doing so would not be in violation of Executive Order 12333,which prohibits assassination, the question remains as to what type of process U.S. citizens should be afforded in these attacks. After analyzing the case law, this essay argues that even in the context of war, courts should afford additional protections to U.S. citizens while they are abroad. Moreover, as illustrated in the seminal cases of Hamdi v. Rumsfeld and Boumediene v. Bush, the United States Supreme Court has also avoided formalistic determinations of the process due to citizens and non-citizens alike in the post 9/11 context This paper will proceed as follow:

Part I examines the current body of international humanitarian law that addresses the question of targeted assassinations. Part II in turn examines American domestic law with respect to targeted assassinations. Part III sets forth a proposed judicial review mechanism to challenge executive branch designations of “terrorist” eligibility for targeted assassinations. To be sure, employing force to prevent future harms can never be done in an optimal fashion. Errors are inevitable, for no military can choose the right target every time, nor can any military hit its target every time. With this basic recognition, I argue that an institutional review body could help assuage potential error rates while ensuring targeting remains with rule of law constraints. This section delineates two specific features of this judicial review body: First, it argues in favor of incorporating basic international law constraints into the adjudication process. On this understanding, in addition to imminence, the United States needs to account for the degree of expected harm, the probability of being attacked, the estimated collateral damage (including civilian life), the related requirement of military necessity (which in this context may preclude the possibility of safe arrest), the prohibitions against perfidy and treachery, and other pertinent norms of customary international and treaty law.

Second, this section discusses how social psychology findings regarding the potential of skewed risk assessment manifests the need such a judicial mechanism of accountability. These findings suggest that government officials who know they will be accountable reach better-reasoned decisions and avoid many of the problems associated with skewed risk assessment, which can create enormous consequences in the context of targeted killings of US citizens. This paper thus does not argue that targeted killing should be illegal under all circumstances. As some have pointed out, it has proven to be a vital tool in the ongoing conflict with Al Qaeda. Rather, it argues for the creation of a structure to adjudicate the legality of specific targeted killings ex ante. This institution would acknowledge the military concerns that necessitate targeting as a use of force while affording U.S. citizens a basic level of process and protections associated with baseline international humanitarian law norms.

Keywords: Targeted Killings, Al-Qaeda, Afghanistan, Bush administration, Obama administration, International Law, Self-Defense, Article 51, Fifth Amendment