The Constitution Follows the Drone: Targeted Killings, Legal Constraints, And Judicial Safeguards

Abstract

The more national security law stays the same, the more it changes. To understand why, consider relevant developments that have occurred in the few months since the original version of these remarks were delivered earlier this year.

As far as we know, targeted killing remains alive and well as a key element of U.S. policy. Reports of deaths from just drone strikes for just the first half of 2014 in just Yemen range from 45 to 105. If accurate, these numbers represent a slight increase over the previous year and the numbers may increase far more dramatically beyond Yemen. Overnight, the same Administration that has been under fire for overuse of drones has come under criticism for not deploying them more to counter the recent and stunning advance of the al Qaeda associated Islamic State in Iraq and Syria on Baghdad.

Yet just as targeted killing persists, so too do more legally constrained alternatives. Last March, Sulaiman Abu Ghaith was convicted for conspiracy to kill Americans and for providing, and conspiring to provide, material support to terrorists by a jury in the United States District Court for the Southern District of New York. The son-in-law of Osama bin Laden, Abu Ghaith had been a high-ranking member of al Qaeda who released a series of inflammatory videos after the attacks of September 11. U.S. authorities discovered him in Turkey in 2013. But rather than assassinate him, they instead successfully requested that Jordanian officials arrest him and turn him over for criminal trial in the United States. Just over a year later he stood convicted in a courtroom located a few blocks from Ground Zero in Manhattan.

Together, the continued use of drones and the Abu Ghaith conviction demonstrated that not much had changed since the book Kill or Capture underlined the stark contrast of the Obama Administration’s policies. More recently still, however, another federal court in the same complex did alter the legal landscape. This June, in response to an ACLU Freedom of Information Act request, the Second Circuit ordered the release of an only partially redacted version of the long sought OLC memorandum providing the legal basis for the killing of Anwar al-Awlaki, a U.S. citizen alleged to be a high ranking al Qaeda operative, by a drone in 2011. With its release, the memorandum permits a more thorough critique of the Administration’s use of targeted killing, its legal justifications, and the proper role of the courts.

This essay addresses each of these topics. First, it considers the current level of targeted killing and the ongoing need for greater transparency notwithstanding the court-ordered release of the al-Awlaki memorandum. Second, it briefly considers the international law constraints applicable to targeted killing. Finally, the essay focuses on the principal limits established by the Constitution, standards that in turn compel some form of judicial review with regard to at least certain uses of lethal force currently practiced.