[This is the fourth part of a six-part series associated with a Jadaliyya roundtable discussing targeted killings . Participants include Richard Falk, Nathan Freed Wessler, Pardiss Kabriaei, Leonard Small, and Lisa Hajjar. Click here for the introduction to the roundtable.]
In a speech at Yale Law School in February 2012, the US Defense Department’s General Counsel, Jeh Johnson, outlined several legal principles that form the basis for the Obama administration’s national security policy against al-Qaeda and “associated forces.” Echoing the position the administration has consistently argued in court in cases raising national security issues, he said that decisions taken as part of the administration’s targeted killing policy are not appropriate for judicial review. Johnson assured the students that such decisions are debated and scrutinized by lawyers within the executive branch, but his position was that the courts should not and need not get involved.
That position is clearly the antithesis of what we advocated in Al-Aulaqi v. Obama, a lawsuit brought by the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) challenging targeted killings by US forces outside zones of recognized armed conflict, specifically, the targeting of a US citizen in Yemen. In bringing Al-Aulaqi, our contention was that when it comes to a US citizen who is being targeted for killing by his own government on the basis of accusations alone that he is a member of a terrorist organization, who is at risk of being arbitrarily deprived of his life under the Due Process Clause of the Fifth Amendment, and with respect to whom there is no question that the protections of the US Constitution apply—that in at least such a case, there must be a role for the courts.
Our substantive legal argument was that any lethal action by the US in Yemen against Anwar Al-Aulaqi, whom the US accuses of being a member of al-Qaeda in the Arabian Peninsula (AQAP), must be governed by the Constitution and international human rights law, which permit lethal force without due process only where there is an imminent threat of deadly harm and such force is a last resort. That usual constitutional constraint on the government’s actions was not displaced by the exceptional rules of war for two reasons: The hostilities in Yemen between the US and AQAP do not rise to the level of an armed conflict, and even assuming the existence of an armed conflict between the US, al-Qaeda and undefined “associated forces” that extends everywhere – or, as the administration puts it, in Afghanistan and “elsewhere” – AQAP is not such an associated force and thus does not come within that conflict.
Based on the information reported about Al-Aulaqi’s targeting – that he had been added to government “kill” lists on which individuals remained for months at a time, and that he had been the target of prior unsuccessful US strikes and was being actively pursued – we alleged that there was a standing order for his killing that called into question whether the standards of imminence and last resort were being applied. Our request of the court was not to engage in real-time assessment of the government’s targeting decisions, but to determine the legal standard that should govern its actions and to enjoin the government from killing Al-Aulaqi outside of those parameters.
The administration did not respond to the substance of our arguments, but argued instead that the court should not consider the case at all. Obama Department of Justice attorneys echoed many of the arguments their Bush administration predecessors had made in seeking to prevent judicial review of allegations of arbitrary detention, extraordinary rendition, and torture since 9/11. The government’s arguments for dismissal included that our case raised national security questions – “political questions” – best left to the executive branch, and that litigation of the case would also risk disclosure of sensitive national security information – “state secrets.”
The district court ultimately dismissed the case on political question and standing grounds, holding that our client, Al-Aulaqi’s father, was not the appropriate person to bring the case because we had not shown that his son could not act for himself, despite being under continuous threat of death by drone. In its political question holding, the district court acknowledged the “somewhat unsettling nature” of its conclusion “that there are circumstances in which the Executive’s unilateral decision to kill a US citizen overseas … is judicially unreviewable,” and that no US court had ever refused to hear a citizen’s claim that his personal constitutional rights have been violated as a result of US government action taken abroad on political question grounds.
Indeed, in cases the Supreme Court has considered over the past decade, where the executive branch claimed the authority to detain US and foreign citizens alike as “enemy combatants” without charge, and deny or restrict their access to the courts, the Court repeatedly rejected the notion that it should have no role or only a very circumscribed one. In the Court’s 2004 opinion in Hamdi v. Rumsfeld, for example, in response to the government’s argument that anything beyond limited judicial review would raise profound separation of powers concerns and interfere with vital military objectives in wartime, a plurality of the Court “reject[ed] the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances,” and held that even in times of conflict, the Constitution “most assuredly envisions a role for all three branches [of government] when individual liberties are at stake.”
Implicit in the Obama administration’s position against judicial review of its targeting practices is not only that such review is inappropriate, but also that it is unnecessary. As Jeh Johnson assured the students at Yale, lawyers within the executive branch subject the administration’s national security legal positions to great scrutiny. But the necessity of internal diligence notwithstanding, resting on executive assurances alone has led to egregious wrongs in the past.
Guantanamo is an apt example. From the first days the prison opened in January 2002, government officials issued statements that the men being detained at the US military base, who stumbled off planes in shackles and hoods, were all dangerous members of al-Qaeda and the Taliban who had been captured fighting in Afghanistan and were intent on doing harm to the US. From 2002 to 2004, the US held over 750 men on the basis of its own secret information and secret determinations. We did not know the names or nationalities of those being held, for what reasons or on what legal basis.
In the first case to challenge the detentions, Rasul v. Bush, the government argued for the courts to stay out: In the global armed conflict against al-Qaeda and its supporters, contending that judicial review would put the courts “in the unprecedented position of micro-managing the Executive’s handling of captured enemy combatants” and, in any case, the absence of review did not mean the detainees were without rights or that their detentions were without congressional and public scrutiny.
The detainees ultimately prevailed in Rasul, which opened the government’s detention policy at Guantanamo to real scrutiny. Years more litigation and scrutiny exposed that the Bush administration’s claim of detention authority was overbroad, its internal processes for status determinations were woefully inadequate and, ultimately, that many men were wrongfully held and abused for many years. Notwithstanding debates about whether or to what extent this administration’s policies differ from the former, unreviewable executive authority can lead to overreaching and abuse regardless of the particular president in office. In the context of targeted killing, the consequences are obviously irreparable.
Alongside the lack of judicial review thus far, other meaningful checks on the administration’s targeted killing operations are also lacking. For one, there are gaps in congressional oversight. The targeted killings with which CCR was concerned in Al-Aulaqi – those occurring outside of recognized war zones – are not carried out by conventional US military forces, but by the CIA and a clandestine unit of the military known as the Joint Special Operations Command (JSOC). Reporting of information about CIA and JSOC operations is generally limited to Intelligence and Armed Services Committees in the House of Representatives and the Senate, and sometimes only to their leaders. Those who are briefed on these operations are prohibited from discussing what they have learned with those who lack the requisite security clearance. Thus, as the Washington Post reported in December 2011, “the vast majority of lawmakers receive scant information about the administration’s drone program.” Moreover, because CIA and JSOC operations are reported to separate committees, “no committee has a complete, unobstructed view” of the program. JSOC, which according to some experts has more of a central role than the CIA in counter-terrorism efforts against al-Qaeda, has less oversight of its activities than the CIA. While some briefing to the Armed Services Committees does reportedly occur, there is nothing analogous to the reporting required of CIA operations to the Intelligence Committees.
The public has also been kept largely in the dark about the targeted killings that were our concern in Al-Aulaqi. One of the most egregious examples of the lack of transparency by the US is an attack in Yemen in December 2009, during a period in which the government insisted that its only role in that country was limited to training Yemeni military forces. On 17 December 2009, a cruise missile struck the village of al-Majalah, killing forty-one members of two families, including twenty-one children. The Yemeni government claimed responsibility. US news sources reported experts who criticized Yemen’s “heavy-handed” methods. The Pentagon refused to comment. A year later, reported leaks revealed that it was the US, not the Yemeni government, that had conducted the strike, and that US and Yemeni officials secretly had agreed that the Yemenis would publicly to take responsibility for this and other US military strikes in the country.
Such deniability of targeted killings by the US in Yemen and Pakistan is less plausible now, but the US still does not officially acknowledge these strikes, let alone provide any data that would allow the public to understand the scope and impact of the killings or their compliance with the law. Ironically, while the government will not officially confirm or deny responsibility for its strikes, it has seen it prudent to confirm that they have resulted in very few civilian casualties. In June 2011, John Brennan claimed that “there ha[dn’t] been a single collateral death” resulting from CIA drone strikes in Pakistan for almost a year. Juxtaposed with even the more conservative figures of non-governmental sources documenting the deaths resulting from these strikes, the government’s claims raise serious questions that must be answered, including about its criteria for defining targets.
Jadaliyya Roundtable on Targeted Killings:
Part I: Jadaliyya Roundtable on Targeted Killing: Introduction
Part II: A Meditation on Reciprocity and Self-Defense in Relation to Targeted Killing
Part III: Lawyering and Targeted Killing
Part V: The Secret Bureaucracy of Targeted Killing
Part VI: Lawfare and Targeted Killing Revisited--A Response