Due process rights and the targeted killing of suspected terrorists: the unconstitutional scope of executive killing power.

• Author: McKelvey, Benjamin

ABSTRACT

The Central Intelligence Agency (CIA), with the approval of the Obama Administration, conducts targeted killings of individual suspected terrorists. These killings have significantly increased since the Iraq war and are now a central component of U.S. counterterrorism strategy. The targeted killing program consists mainly of missile strikes from Predator drones, which are unmanned aerial vehicles operated by the CIA. In May 2010, President Obama's National Security Council approved the targeted killing of Anwar al-Aulaqi, a U.S. citizen and suspected al-Qaeda senior leader believed to be hiding in Yemen. As the first American targeted for extrajudicial lethal force, Aulaqi's situation quickly became a source of great controversy and concern. His father challenged this decision in federal court in December 2010, but the court ruled in favor of executive authority and awarded summary judgment to the government. Aulaqi was subsequently killed by a drone strike in September 2011. This Note challenges the asserted statutory and constitutional basis for the president's authority to order the targeted killing of an American citizen. As the case of Anwar al-Aulaqi demonstrates, the constitutionality of targeted killing is highly suspect. To clarify the state of the law, Congress should pass legislation that either prohibits targeted killing or establishes judicial oversight.

TABLE OF CONTENTS I. INTRODUCTION II. AN OVERVIEW OF TARGETED KILLING AND THE CASE OF ANWAR AL-AULAQI A. Defining Targeted Killing as a Concept and Practice B. The Aulaqi Case in Federal Court C. The Aulaqi Opinion Reveals a Judicial Impasse III. CHALLENGING THE ASSERTED GROUNDS OF AUTHORITY FOR THE TARGETED KILLING OF AMERICANS A. The Scope of the A UMF Is Not a Political Question B. The Constitutionality of Targeted Killing Is Not a Political Question IV. CHALLENGING THE CONSTITUTIONALITY OF TARGETED KILLING: A CLEAR VIOLATION OF DUE PROCESS A. How Due Process Rights Are Determined B. A Comparative Perspective: The Due Process Rights of Detainees V. CHALLENGING THE EXECUTIVE BRANCH DEFENSE OF TARGETED KILLING A. The Obama Administration's Reassurances Are Circular and Unsatisfactory B. A Record of Error and Abuse of Authority C. The Need for a Resolution VI. THE RESPONSIBLE WAY FORWARD: CONGRESS SHOULD EITHER PROHIBIT THE TARGETED KILLING OF AMERICANS OR ESTABLISH OVERSIGHT A. Option One: Congress Could Pass Legislation to Establish Screening and Oversight of Targeted Killing i. FISA as an Applicable Model ii. CIPA: An Alternative Model B. Option Two: Congress Could Pass Legislation Prohibiting the Targeted Killing of Americans VI. CONCLUSION I. INTRODUCTION

In September 2011, the Obama Administration killed Anwar al-Aulaqi, an American citizen, through a covert counterterrorism program known as targeted killing. (1) The Department of Justice (DOJ) claims that Aulaqi was a senior leader of al-Qaeda in the Arabian Peninsula and that he represented an imminent threat to national security. (2) Although the government would not produce specific evidence against Aulaqi, (3) there is a large body of publicly available evidence that linked Aulaqi to jihadist, anti-American views and to several terrorist plots. (4) However, Aulaqi was never detained in connection with terrorist activity or convicted of plotting or aiding a terrorist attack) Aulaqi was eventually killed by a drone missile strike in Yemen. (6)

In August 2010, Aulaqi's father, Nasser al-Aulaqi, filed suit against the federal government and requested an injunction against the targeted killing of his son. (7) The complaint alleged that a targeted killing would violate Anwar al-Aulaqi's Fifth Amendment right to due process of law before a deprivation of life. (8) In response, the DOJ argued that the decision to target Aulaqi for extrajudicial killing was purely within executive branch authority and that to litigate this matter would require judicial infringement on executive power. (9) Nasser al-Aulaqi asserted that the Executive Branch claimed the power to kill an American without producing any justification. (10) The government's response essentially suggested that, in fact, it had this power in the context of counterterrorism and that this power was not subject to judicial review. (11)

In December 2010, the District Court for the District of Columbia rejected Nasser al-Aulaqi's claims and granted summary judgment to the government. (12) While acknowledging the profound and troubling nature of the issues at stake in the case, (13) the court deferred to the assertion of executive authority and declined to review the evidence against Aulaqi. (14) The court held that these issues were nonjusticiable and that Aulaqi's father did not have standing to bring this claim on behalf of his son. (15)

This Note challenges the statutory and constitutional basis for the government's authority to conduct the targeted killing of Americans and attempts to resolve important legal questions left unanswered by the controversial outcome of Al-Aulaqi v. Obama. Applied broadly, the practical effect of the Aulaqi holding suggests that the president has the unchecked authority to kill Americans accused of terrorism without providing the accused with some minimum form of due process. (16) According to the defendants' reasoning in Aulaqi, the government's use of lethal force, even against its own citizens, is shielded from judicial review merely on the assertion that lethal force was necessary to respond to the threat of terrorism. (17) Although the use of force in the specific case of Aulaqi may be justifiable, the precedent established by this case creates a broader and more unnerving form of executive power than is permissible under the constitution. (18)

While targeted killing is utilized much more frequently against foreign suspected terrorists, which is itself a subject of controversy in international law, this Note focuses on the constitutional and prudential objections to the targeted killing of Americans. (19) Part II provides an overview of the concept of targeted killing and analyzes the court's reasoning in the Aulaqi opinion to provide a framework for analysis. Part III challenges the court's conclusion that targeted killing represents a nonjusticiable political question, reasoning that a premeditated killing does not satisfy the imminence standard for the use of defensive force as a matter of law. Part IV expands on the constitutional criticism of targeted killing by arguing that a deprivation of life without notice or opportunity to protest is a clear violation of minimum due process rights. Part V raises a number of historical and prudential grounds for distrusting the president's exclusive authority over targeted killing. Finally, Part VI proposes that congress either prohibit targeted killing or establish independent oversight of this controversial program.

2. AN OVERVIEW OF TARGETED KILLING AND THE CASE OF ANWAR AL-AULAQI

   1. Defining Targeted Killing as a Concept and Practice

      Targeted killing is an "extra-judicial, premeditated killing by a state of a specifically identified person not in its custody." (20) The CIA conducts the majority of U.S. targeted killings using missile strikes from unmanned aerial vehicles, more commonly known as Predator drones. (21) According to John Rizzo, the CIA's former acting general counsel, the targeted killing program is "basically a hit list" in which the "Predator is the weapon of choice, but it could also be someone putting a bullet in your head." (22) These covert drone strikes are an integral part of U.S. counterterrorism strategy and have increased significantly during the Obama Administration. (23)

      The government has neither confirmed nor denied the existence of an official targeted killing program. (24) However, media outlets have reported extensively on the existence and nature of the U.S. targeted killing program. (25) The New York Times reported that because Aulaqi is an American citizen, President Obama's National Security Council had to approve the order to pursue him with lethal force. (26) It is unclear why the National Security Council's approval was necessary or constitutionally satisfactory. (27) This ambiguity raises a fundamental problem with the current targeted killing program: what are the procedures for determining the targets of lethal force and how is the program managed? Understanding the procedural mechanisms that determine this process is an essential step in evaluating the legitimacy of targeted killing safeguards and oversight.

      Rizzo has called the process by which suspected terrorists are identified and targeted for lethal force as "punctilious." (28) Bruce Reidel, a former CIA officer, claims there is a "well-established protocol." (29) Within the CIA's Counterterrorist Center, a team of roughly ten agency attorneys reviews the evidence against suspected terrorists and prepares memos arguing whether or not the collected evidence merits an order for targeted killing. (30) Memos that recommend targeted killing are sent to the General Counsel for approval. (31) Rizzo described the subordinate lawyers as "very picky" and the memos as "carefully argued." (32) He also described situations in which flimsy cases were rejected for lack of persuasive evidence. (33) However, beyond official descriptions of a rigorous and methodical process, few specific details are known about the evaluation of evidence against suspected terrorists or the standard of proof. (34) How is evidence collected by field agents in foreign countries verified by American attorneys for authenticity and veracity? Are there minimum standards for the quantity and quality of evidence required for a targeted killing order? Is the evidence evaluated under the criminal "beyond a reasonable doubt" standard, or under something less strict, such as the "preponderance of the evidence" standard? These are critical questions, but as the case of Anwar al-Aulaqi...