President Obama plans to execute via a drone strike another US citizen, but this time under his revised signature killing procedures. These procedures evidently are more stringent than the original targeted killing procedures. This has angered some Republicans, who argue greater procedures will slow down the killing of alleged enemies. While this is a complicated topic, I think the Obama Administration is correct in increasing the required procedures prior to killing US citizens. In fact, the Obama Administration probably did not go far enough.
Generally, under the 5th Amendment the executive cannot execute persons (let alone citizens) absent the due process of law. Therefore, it would seem obvious that the president cannot write and execute a kill list. Yet one obvious exception to the 5th Amendment is Jus in Bello – the law of war. During war, it would be impossible for the president to provide due process in any meaningful way to enemy soldiers. This exception must be narrowly construed and diligently enforced, less the exception swallows up the general rule.
The global war on terror is a grey place where the rule and exception come very close to meeting. Once again, no one would deny that the US President could during war order an attack that kills enemy combatants. Moreover, if that attack killed US citizens who defected to the enemy, I do not think there would be 5th Amendment arguments that would prohibit the attack. The difficulty in the war on terror is that it is very unclear whether someone has actually defected to the enemy. It isn’t always clear who the enemy is. Moreover, the war has neither defined borders nor a start/end date. It is very much not a war in the traditional sense. This should make everyone weary of giving any executive substantial latitude – the power will exist for a long time.
As such, it makes the targeted killing question very difficult to answer: does it fall under the war exception or the general 5th Amendment rule? Attorney Holder seemingly offered an in-between. He argued that a non-judicial process that was vetted by the executive was sufficient. This strikes me as the fox guarding the hen house. Yet recent alternatives do not seem particularly appealing. The FISA court was either a rubber stamp or was simply lied to by the NSA. Congress often delegates on matters of national security. How do you solve this issue?
Perhaps an improved FISA court? One of the large problems with the FISA court was its ex parte nature. Ideally, we could construct a targeted killing court where standing rules could be relaxed permitting non-governmental organizations, such as the ACLU, to argue cases on behalf of the alleged enemy. This court could not be an Article III Court. The second problem with the FISA court was the secrecy behind the court. Because its opinions weren’t made public, the legal conclusions were not scrutinized. Now, given the nature of targeted killings there would need to be some secrecy. But there could be a standard that all opinions must be published within 9 months. This would open the killings court to criticism, which could help avert some of the problems that plagued the FISA court and would make clear whether the court is functioning properly.
In the end, Obama was right to want more procedure. However, he probably needs to include more non-executive procedure and non-government stakeholders in the process.
*Isaiah Hunter is a J.D. Candidate at New York University School of Law, class of 2014, and is Senior Articles Editor of the Journal of Law & Liberty.