The Constitution follows the drone: targeted killings, legal constraints, and judicial safeguards.

• Author: Flaherty, Martin S.

INTRODUCTION

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. (1) If accurate, these numbers represent a slight increase over the previous year, (2) 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. (3)

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. (4) 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. (5) 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. (6) 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.

1. TRANSPARENCY

   Assessing how well the U.S. applies the relevant law to the actual practice of targeted killing requires knowledge of what the government's practices are as well as how it understands the law. On the law, the Administration has been piecemeal. On the facts it has been close to Orwellian.

   Take first targeted killing itself: For nearly four years the Obama Administration did not officially acknowledge that the practice took place. Not until April 2012 did John Brennan, then White House counterterrorism advisor, concede that the United States government conducts targeted strikes against specific al Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones. (7) Yet to date, neither Brennan nor any other official has set forth how many drone strikes or other instances of targeted killing have occurred, how many have been killed or injured, how many of that number have been civilians rather than legitimate targets, or where these acts have taken place.

   The Administration's reticence stands in stark contrast to the dramatic rise in drone strikes, particularly since President Obama took office. Faced with official silence, it has fallen to an array of media, NGOs, even law school human rights programs, to fill the void. These sources more or less agree that the government has authorized something like 300-plus drone strikes, which have killed about 3,500 people, including approximately 300 to 400 civilians, mainly in Yemen, Pakistan, and Somalia. (8) The same sources further indicate that the vast majority of these strikes have taken place since President Obama took office. (9) Of the deaths, Attorney General Eric Holder has acknowledged that four were U.S. citizens, including the alleged operational leader of al Qaeda in the Arabian Peninsula (AQAP), Anwar al-Awlaki. All of these killings also occurred since 2009. (10) Nor is official reticence limited to the strikes themselves. While some information is publically available with regard to the government's procedures for targeted killing, (11) it nonetheless remains incomplete in several regards (12) -gaps that outside sources once again have attempted to fill in. (13)

   Acknowledging drone attacks, yet failing to address the specifics, is sufficiently Orwellian in its own right. This is especially so when former administration officials indicate that the true numbers are far lower than what the press and NGOs report. (14) The Administration doubtless has sound security reasons for withholding certain information. But not to provide any-especially when outside sources offer at least plausible conjectures--undermines any attempt to assess whether the policy comports with the law.

   Then there is the government's legal analysis. Here significantly more material has been forthcoming. Yet its release has been needlessly grudging, incremental, disjointed, and most importantly, incomplete.

   The resulting pastiche roughly falls into three categories. First, and to their credit, several leading officials outlined the government's legal position in prominent speeches, including John Brennan, Harold Koh, and Jeh Johnson. (15) Second, important material has been leaked, most notably, a Department of Justice White Paper summary of a longer Office of Legal Counsel memorandum by David Barron and Marty Lederman on the legal basis for the targeted killing of al-Awlaki. (16) Finally and most recently, the Administration released a partially redacted version of the OLC memorandum itself, agreeing not to contest a Second Circuit order in an effort to advance David Barron's nomination to the First Circuit. (17) On these bases, it is possible to piece together an overall government position. (18) Even then, as Greg Katsas's observations indicate, the analysis in these records remains somewhat thin. (19)

   As a matter of both due process and freedom of information, the American public and our allies are at the very least entitled to know what the legal basis is for using the extraordinary power of targeting someone for death, through whatever means. On this the left and right broadly agree, and probably more to the point, so do watchdogs and insiders. Calls for greater transparency have issued from such usual suspect as the ACLU, Human Rights Watch, and Human Rights First. (20) Yet they have also come from former government officials, and erstwhile Federalist Society stalwarts as Jack Goldsmith (21) and John Bellinger. (22) Not many national security law issues command a near consensus. The need for the U.S. to provide a comprehensive legal analysis concerning targeted killing, however, is one of them. (23)

2. INTERNATIONAL LAW

   Targeted killing implicates international law as fully as domestic norms. And contrary to certain commentators' suggestions, (24) the United States does well to take its international legal obligations seriously. Historically, the U.S. has been a leader in the development of the international humanitarian law of armed conflict--the laws of war--ostensibly the most relevant body of international law. (25) Today, moreover, adherence to international law is critical to leverage support from allies and the international community in an era of overstretched military commitments and reduced defense budgets. A recent report by the New York City Bar Association illustrates that a thorough treatment of the relevant international law issues can be encyclopedic. (26) It suffices here to map out some of the more important points of contention: one threshold, one concerning whether armed force can be used, one addressing how it can be employed. In each instance, international law does not necessarily foreclose targeted killing. But it does present obstacles that the Administration has yet to answer adequately.

   As an initial matter, just where around the globe can the United States confront terrorism militarily, including targeted killing, rather than as a matter of criminal law enforcement? Drones, for example, have been used on the so-called "hot" battlefields of Afghanistan, as well as neighboring Pakistan. Yet they have also been used hundreds if not thousands of miles away in Yemen and Somalia.

   A threshold cut depends on whether the action is part of an "armed conflict." If not, then international human rights law applies, under which extra-judicial killing is clearly prohibited. (27) If so, then targeted killing may be used subject to the laws of war. A classic international armed conflict exists when two states are engaged in hostilities. (28) But it may be, in the words of Common Article 3 of the Geneva Conventions, "an armed conflict not of an international character," that is, between a state and a nonstate actor, when a conflict has achieved a sufficient intensity and the non-state belligerent is sufficiently organized to be a party to the conflict. (29) This extension of the laws of war traditionally implicated civil wars or...