Enhancing Due Process in Targeted Killing

Abstract

The legality and wisdom of U.S. targeted killing operations in areas outside of active hostilities has been the subject of vigorous debate for more than a decade. While there is broad agreement that there are at least some circumstances in which targeted killing may be lawful – in an armed conflict, or in national self defense – there remains a world of dispute over how those operations can be conducted in a way that complies with domestic and international law. Among those requirements, at the least for U.S. citizens, the Fifth Amendment to the U.S. Constitution prohibits the government from depriving any "person" of "life, liberty, or property without due process of law." While the application of procedural due process in this context carries multiple important objections, the argument that it is never possible to provide advance process in lethal targeting operations is false. Targets in the current environment are often identified, vetted, and reviewed over days or even months – more than enough time for some pre-targeting process to be followed. Notably, there may well be adequate time for deliberate process even when the legal justification for the U.S. use of force is the exercise of national self defense. This Issue Brief examines the procedural requirements of the Due Process Clause when the United States uses lethal force in areas outside of active hostilities abroad. Among the Issue Brief’s conclusions: (1) it advances constitutional due process to provide clear and public notice of those particular nations or organizations with which the United States considers itself at war; (2) the inclusion of an opposition advocate – a military professional tasked with advancing arguments in opposition to any targeting decision – may reduce the risk of error in deliberate targeting settings; (3) the recently released "U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the U.S. and Areas of Active Hostilities," announcing that targeters must possess a "near certainty that the terrorist target is present," brings the burden of proof for deliberate targeting in these settings more in line with constitutional due process than existing military doctrine; (4) where adequate pre-deprivation process is not possible (as in exigent circumstances), a post-deprivation hearing is required.

Keywords: drones, targeted killing, due process, terrorism