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Game of Drones: The Constitutionality of Targeted Killings of American Citizens under the Authorization for Use of Military Force Against Terrorists

Tyler Hatch

POE 499: Senior Seminar

Hunter

May 8, 2013

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“The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” (Boumediene v. Bush 2008)

Following a series of four highly coordinated domestic terrorist attacks that occurred on

U.S. soil on September 11, 2001, the United States government quickly rose above partisan

politics in order to pass legislation aimed at protecting the nation and her allies from similar

threats. Passed by a 420-1-10 vote in the House of Representatives and a 98-0-2 vote in the

Senate, the Authorization for Use of Military Force Against Terrorists Act (AUMF) authorized

the president "to use all necessary and appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred

on September 11, 2011, or harbored such organizations or persons, in order to prevent and future

acts of international terrorist against the United States by such nations, organizations or persons"

(Authorization of Military Force Against Terrorist Act, 2001). Such authorization was radical in

its scope and has afforded the executive branch great deference over civil and political rights in

the name of ensuring national security. By affording the executive branch the power to define the

extent of the force that he or she will employ as well as the ability to target nations,

organizations, and private individuals, Congress has radically transformed the powers

concentrated in the executive branch.

While the implications of AUMF are uniquely transformative on executive powers,

throughout American history our society seems willing and able to sacrifice civil and political

liberties in the hope of ensuring national security. Immediately following the formation of our

nation, legislators sought to restrict association and speech in order to ensure the stability and

continuation of our newly founded republic through the Alien and Sedition Act. Similarly,

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Lincoln’s suspension of habeus corpus illustrated the frailty of constitutional protections to

endure during times of war. Korematsu vs. United States represents the willingness of the

government, Supreme Court, and the general public to ostracize and criminalize an entire class of

citizens based on their actual or supposed racial heritage. When national security and the safety

of the republic are threatened, America historically is willing to shed liberties in favor of a sense

of security. It must be noted, however, that there are several military conflicts in which such

sacrifices were not made in the name of national security. Accordingly, although the nation may

be inclined to sacrifice civil liberties in the name of national security, it is not a hard and fast rule

nor should it be expected of the American public to do so during times of conflict.

The Founding Fathers were hesitant to accumulate sweeping powers in the executive

branch as expressed in Federalist Paper 47 which states, “the accumulation of all powers,

legislative, executive, and judiciary, in the same hands, whether of one a few, or many, and

whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of

tyranny…” (Madison 1788, 1). Indeed, the power of the executive to act as a commander-in-

chief over the military had been historically tempered by Congressional authority to raise and

maintain a standing military. Warfare, like the enemies that the nation combats, has evolved

greatly throughout the twentieth and twenty-first century and has led to a system wherein a

standing military is ever present and under the purview of the executive. This ever-present

military is more powerful than ever imagined by our nation’s founders both in sheer size and

military capabilities. War is no longer limited to traditional battlefields or trenches, but is instead

being increasingly fought in suburban areas through the use of highly targeted military

technologies including drones (Boyle 2013, 2). The international legality of this new warfare and

targeted killings have been criticized greatly by the media; however, the implications on civil

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liberties has received little academic discussion due to the extremely secretive and private

approach that the executive branch has taken towards this issue.1

Following the unauthorized release of a Department of Justice (DOJ) White Paper which

defends lethal operations directed against a U.S. Citizen who is a senior or operational leader of

Al-Qa’ida or an associated force in early February, much attention has been given to this subject

although little legal analysis of the logic and interpretations within this White Paper have been

conducted. While the Department of Justice dismisses constitutional ramifications within their

White Paper, I suggest that the ability of the executive branch to conduct these lethal operations

without first seeking congressional or court approval is in direct violation of the principles within

the 4th and 5th Amendment. The government seeks to diminish the Due Process, “seizure”, and

“reasonableness” protections afforded to American citizens in the name of national security.

While such sacrifices are not uncommon throughout U.S. history, the ability of the executive to

act as judge, jury, and executioner based upon classified and non-challengeable evidence is in

direct contradiction to nearly all social, historic, and legal understandings of individual rights

within our nation. Despite declarations from the international community, the Supreme Court,

and Executive Orders, the Obama administration continues to exert and employ these lethal

operations against suspect U.S. citizens. I conclude that the Department of Justice and the

executive branch wrongly surmise that such operations, insofar as they are conducted without the

mediation and review of an independent judicial or congressional forum, are inherently

unconstitutional and a radical expansion of executive powers. Such forums still bear significant

1 A targeted killing is defined as: “the intentional, premeditated and deliberate use of lethal force, by States or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator. Despite the frequency with which it is invoked, “targeted killing” is not a term defined under international law. Nor does it fit neatly into any particular legal framework” (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions 2010, 3).

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constitutional questions, however, they provide a necessary check and independent review of the

executive and prevent this branch from acting as judge, jury, and executioner. While Congress

has been unwilling to challenge the Obama administration on this radical expansion of executive

power, the ethical and legal implications of such lethal operations are so severe that this issue

must be confronted.

Any constitutional analysis is predicated upon the authors assumptions and

interpretations on how he or she approaches precedent, historical context, and various other

factors that courts frequently employ in their opinions. Accordingly, this paper may ultimately

prove to be an incorrect interpretation of constitutional precedent should the Court ever decide or

be given the opportunity to hear the merits of such issues. However, the implications of the

executive branch’s power remain quite real and troubling to the Constitution and ought to be

addressed by Congress and this paper hopes to contribute to such a discussion. This paper

emphasizes the protection of constitutional and civil liberties over national security rhetoric and

while such a bias shapes the opinions and positions taken by the author, credence is given

towards the positions of the Department of Justice and the executive branch’s quest to protect the

American public. Ensuring the safety and tranquility of U.S. citizens and the general public

ought to remain a priority for the government and the executive branch, however, when measures

are taken to protect the public that challenge constitutional tradition and principles such policies

must be evaluated critically. This paper additionally will not discuss the international legal

implications of U.S. drone strikes as the United Nations has conducted an exhaustive analysis of

these issues as they relate to international laws and standards of conduct (Alston 2010).

Section one of this paper will discuss and review the legal assumptions and justifications

present within the White Paper, which frames the legal analysis that the Department of Justice

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offers throughout the document. The three conditions that the White Paper constructs to avoid

coming into conflict with constitutional principles must be explored and analyzed before a

deeper analysis of specific constitutional questions can be explored. Section two of this paper

analyzes the implications of the executive branch’s employment of such lethal force and

concludes that the Department of Justice wrongly surmises that the Fourth Amendment “seizure”

and “reasonableness” standards are met. Section three of this paper analyzes the Fifth

Amendment implications of targeted killings and posits that the Department of Justice

incorrectly concluded that Due Process standards are met through executive review. Section four

of this paper argues that the Department of Justice wrongly deduces that there are no appropriate

judicial or legislative forums or other avenues exist outside the purview and power of the

executive. Ultimately this paper concludes that the Department of Justice incorrectly posits that

the use of targeted killings by the executive branch is in accordance with constitutional principles

and that additional review should be conducted on their findings by either the judicial or

legislative branches of government.

Section One

Created in 1870, the Department of Justice (DOJ) serves to

enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans (Department of Justice 2013).

Following the increasing employment of drone technology against suspected terrorists, the

Department of Justice drafted an internal document which discussed the constitutionality of the

executive branch employing lethal force against U.S. citizens whom were suspected to be high

level members of terrorist organizations without first conducting criminal or civil trials. The

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legal assumptions and justifications present within this White Paper have been construed as

justification by the Obama administration to continue their practice as the DOJ surmises that

such a practice is in adherence with the ideals and standards of the Constitution and international

law.

The DOJ cedes within the White Paper that an individual’s interest in avoiding erroneous

deprivation of his or her life is “uniquely compelling” and clearly an interest that private

individuals and communities possess (Ake v Oklahoma 1985). However, the DOJ is quick to note

that this interest is tempered and mitigated by the government’s interest in ensuring the safety

and tranquility of the community and the nation. Thus, the safety and protection of life of an

American city or state would supersede a singular citizen’s interest in protecting his or her life

under the logic of the DOJ.

The DOJ notes that within Hamidi the Court recognized that the Court “accord[s] the

greatest respect and consideration to the judgments of military authorities in matters relating to

the actual prosecution of war, and … the scope of that discretion is necessarily wide” (Hamidi v

Rumsfeld 2004). While such deference may be high in order to ensure the protection of national

security and state secrets, the level of deference afforded to the executive is far too wide under

the logic offered by the DOJ. The White Paper relies upon the following three conditions in

order to adhere to the constitutional concepts and precepts laid down by our forefathers and by

the Supreme Court:

1) Where an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat or violent attack against the U.S.;

2) Where a capture of operation would be infeasible – and where those conducting the operation to continue to monitor whether capture be feasible;

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3) Such lethal operations comply with the four fundamental law of war principles i.e. necessity, distinction, proportionality, and humanity (avoidance of unnecessary suffering) (Department of Justice 2013, 6).

Although the Obama administration, Congress, and the general public seem largely at ease

accepting these three requirements, each is fraught with issues that bear extreme implication on

the constitutional liberties that Americas have historically been given.

Within the first requirement it is clear that some level of review by a senior level official

would be required before the U.S. government could target one of their citizens for lethal

military action. The White Paper, however, acknowledges that clear and indisputable evidence is

not needed to infer that an attack on U.S. persons or interests will take place in the immediate

future. Indeed, the White Paper fails to define what the “immediate future” entails or what period

of time such a definition would proscribe. The inability or the unwillingness of the government

to conduct an independent review panel or trial is predicated upon the notion that these strikes

are conducted on an extremely time-sensitive basis, yet they fail to establish a standard of what

constitutes immediate. While I ultimately concede that terrorism is a new form of warfare that

challenges the military structure and posturing of the United States, the extension of power that

the DOJ is offering to the executive branch is extreme in nature (Kiras 2010).

The second requirement offered by the DOJ deals with the feasibility of capture.

Feasibility has historically been understood within the military as defined by a time restraint and

whether or not an operation could be successfully undertaken if additional review or processes

were included which would delay the operation (Customary International Humanitarian Law

2005). The failure of a nation to successfully undertake military operations does pose unique

security threats, especially in the age of international terror organizations and non-state actors

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who exist outside the traditional purviews of warfare. This paper agrees with the DOJ in their

conclusion that time restraint is a legitimate concern that contains merit, however, the level of

importance that the DOJ assigns to this concern is too sweeping. A major issue of the feasibility

of capture often is due to the issue of state sovereignty and whether or not another state will

allow the U.S. to either enter it’s borders to retrieve an individual suspect or whether the state

will cede the U.S. the ability to conduct a military operation within their borders. The White

Paper offered by the DOJ does not specify any requirement of adhering to the sovereignty of

foreign states, which could leave room for illegal action under international law and treaties. The

DOJ additionally states within this second requirement that the threat of loss of life for U.S.

military personnel is justification for the employment of lethal action via the use of drones and

other military technology rather than seeking to capture an individual through traditional human-

human interactions (Department of Justice 2013, 7). While the executive branch has a

compelling interest in providing for the safety of U.S. military personnel, the threat to U.S.

military personnel life is an inherent concern and issue that comes with the terms of warfare. The

threat to soldiers’ lives cannot be used as a justification for stripping civil liberties despite the

intention of the DOJ to do just that. This White Paper again fails to define what level of threat of

loss of life is required as a threshold to conduct lethal military action, which could provide the

executive branch of government the ability to determine that any potential threat of loss of life of

military personnel constitutes lethal drone attacks.

The final criteria offered by the White Paper addresses the issue of complying with the

fundamental law of war principles. This paper will not discuss the implications of this

requirement at length as the United Nations 2010 Report of the Special Rapporteur on

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extrajudicial, summary or arbitrary executions provides extensive analysis on how such lethal

operations exist outside and in contradiction to the laws of war.

The above criteria provide the only legal framework supporting the use of drone warfare

against American citizens whom are high-level members of Al-Qaeda or similar organizations

available to the public. Despite the request of the media, leading civil rights organizations, and

the admonition of members of Congress the Obama administration and the DOJ refuse to release

any information that discusses the legal justifications and logic used to warrant such a program.

Accordingly, the American public and legal community’s only understanding of the legal basis

of these targeted killings are found within this White Paper and a limited number of public

speeches where the issue was approached.

Section Two

Following the formation of our government and the Constitution, the United States

quickly adopted a “Bill of Rights” which designated certain rights and liberties as beyond the

ability of the government to proscribe or limit. Among these is the Fourth Amendment, which

creates limitations against unreasonable criminal searches and seizures. This clause provides

that, “the right of the people to be secure in their person, houses, papers, and effects, against

unreasonable searches and seizures shall not be violated; and no Warrants shall issue but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the person or things to be seized” (United States Constitution Amendment Four,

1791).

Long espoused as a critical right in our criminal justice system, the constitutionality of

any seizure has come to be understood by “balan[cing] the nature and quality of the intrusion on

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the individual’s Fourth Amendment interests against the importance of governmental interests

alleged to justify the intrusion (Tennessee v Garner 1985). As noted by Director of the Central

Intelligence Agency and former Chief Counterterrorism Advisor to President Obama John

Brennan, “the preservation of our national security and the laws that define us as the United

States of America demand that we understand the intersection of the two – indeed, how the

reinforce one another” (White House 2011). Courts and our nation’s leaders have grappled with

how to interpret and apply this 18th century text with 21st century surveillance and military

technologies.

The DOJ seeks to expand domestic law jurisprudence to justify their unique brand of

military action by likening their actions to that of law enforcement officers (Department of

Justice 2013, 9). The White Paper notes that the Court has allowed officers to commit deadly

force if “the suspect threatens the officer with a weapon or there is probable cause to believe that

he has committed a crime involving the infliction or threatened infliction of serious physical

harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some

warning has been given” (Scott v Harris 2007). There exists a great difference in the intent and

goal of law enforcement officers and the high-level executive branch members conducting

targeted killings – while police resort to lethal violence as a last resort, these targeted killings are

the only tool that this body employs. Whereas as law enforcement officers may use dialogue,

negotiators, and are, when situations permit, willing to wait for a situation to diffuse the

executive branch claims the inability to capture effectively as justification for the use of lethal

force.

Additionally, there exists a system of redress that individuals can employ when members

of law enforcement use excessive force or when individuals face improper punishment. Under

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the current structure of these targeted killings, no such redress is available. Indeed, even requests

for information regarding the use of these targeted killings have been denied and ignored by

District Courts due to a myriad of executive orders and laws (American Civil Liberties Union v.

U.S. Department of Justice 2013; The New York Times Company, Charlie Savage, and Scott

Shane v. United States Department of Justice 2013). As noted by Justice McMahon “the

Executive Branch of our Government … proclaim[s] as perfectly lawful certain actions that seem

on their face incompatible with our Constitution and laws, while keeping the reasons for its

conclusion a secret” (American Civil Liberties Union v. U.S. Department of Justice 2013, 3).

This case marks the sole legal precedent surrounding the use of drone technology to target

American citizens under the AUMF and should this precedent hold true our nation may never be

told the full extend of the legal justifications that the DOJ has concluded warrant such attacks.

On the issue of the reasonableness of the use of targeted drone strikes against American

citizens the White Paper is surprisingly silent. Indeed, only 4 sentences discuss the justifications

used by the DOJ as to why targeted drone strikes are reasonable courses of action. The White

Paper holds that there is no checklist or requirement of actions for such strikes to be considered

under constitutional jurisprudence (Department of Justice 2013, 9). The White Paper reaffirms

the Court’s position that there is “no magical on/off switch that triggers rigid preconditions …

[to] constitute ‘deadly force’” (Tennessee v Garner 1985). While such a conclusion has been

held for domestic law officers and officers of the peace, the extension of such a holding to

military personnel and those within the executive branch who are leading them is quite a radical

jump in logic. The White Paper recognizes such a difference and states, “what would constitute a

reasonable use of lethal force for purposes of domestic law enforcement operations differ

substantially from what would be reasonable in the situation and circumstances discussed in this

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white paper” (Department of Justice 2013, 9). After recognizing that these differences are radical

in nature the government fails to provide any further justification for why conducting these

attacks ought to be considered reasonable.

The government does seek to employ a balancing test established within Garner to hold

that their conclusion on reasonableness is justified. This shallow application states that any

Fourth Amendment interest that is encroached upon by such attacks is outweighed by the

“importance of government interests that justify the intrusion” (Tennessee v. Garner 1985). The

only interest offered within this section is the protection of American life (Department of Justice

2013, 9). Again, while such a standard is an important interest of the government the degradation

of civil and constitutional liberties cannot be done under a blanket claim of potentially protecting

the lives of American citizens.

Ultimately, the DOJ has failed to indicate that both the reasonableness standards and

seizure standards present within the Fourth Amendment are met with the current system wherein

targeted drone strikes are conducted. While at times novel, the legal analysis offered by the DOJ

is shallow at best and fails to recognize the slippery slope that the position they offer on these

matters have created. At best the DOJ may claim that the Court has yet to address the specific

issues and implications of targeted drone strikes as justification for their nebulous and troubling

position, however, when domestic jurisprudence is examined and applied (as the DOJ seeks to

do) the justifications offered within the White Paper fall short.

Section Three

Among the most basic of tenants in western rule of law is the notion of due process. Such

a concept can be traced to the Magna Carta, which prevented the taking of property or killing of

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an individual by the King unless strict legal procedures were followed (The Great Charter of the

Liberties of England 1215). William Blackstone argued “of great importance to the public is the

preservation of this personal liberty: for if once it were left in the power of any, the highest,

magistrate … there would soon be an end of all other rights and immunities … to bereave a man

of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and

notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole

kingdom” (1753). These sentiments were enshrined in our Constitution as an inalienable process

that would serve to protect the American public from negligent and belligerent actions by the

government and provide a system of justice that the government could not circumvent. The Fifth

Amendment provides in part that, “No person shall be ... deprived of life, liberty, or property,

without due process of law” (United States Constitution Amendment Five, 1791). American

jurisprudence has come to mean no person can be aggrieved by government action prior to

notification of the charges against them and being given a chance to be heard. As noted by the

Supreme Court, “an elementary and fundamental requirement of due process in any proceeding

which is to accorded finality is notice reasonability calculated, under all the circumstances, to

apprise interested parties of the pendency of action and afford them an opportunity to present

their objections” (Mullane v Central Hanover Bank, 1950). Additionally, American due process

ensures that an individual cannot be tried nor punished before any actual crime has taken place in

order to prevent individuals from being charged for hypothetical or crimes that could take place

in the future.

While Congress maintains the ability to suspend habeas corpus during times of national

emergency, the right to due process is one that may not be denied to American citizens. The

Court noted in Ex Parte Quirin that while the right to due process may be narrowed in times of

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national crisis, some level of procedure and formal hearing must be afforded to American

citizens (Ex Parte Quirin 1942). The issue of whether military tribunals constitute the level of

due process guaranteed in the Constitution is not the subject of this paper but rather is used to

indicate that, even in times of crisis, it has been historically understood that due process is a

protected right for American citizens on American soil that is beyond the ability of the

government to ignore.

The Obama administration and the DOJ have presented a radically different interpretation

on the protections offered by the 5th Amendment and how such text would apply to citizens

whom are suspected high-level members or allies of Al-Qaeda or associate forces. The White

Paper posits that the targeted killing of such citizens would not be in violation of the Fifth

Amendment through their understanding of Hamidi v Rumsfeld. The DOJ incorrectly applies the

principles offered within Hamidi and in so doing bases their 5th Amendment jurisprudence on

flawed standing.

The DOJ seeks to employ the balancing test used within Hamidi and in so doing hopes to

illustrate that the interests of the government outweighs the interest of the individual. Before an

analysis of the merits of their interpretation will be conducted, it should be noted that the White

Paper does not seek to limit the implications of targeted lethal killings to battlefields or areas and

nations in which war is beyond conducted but rather provides a rubber stamp through which the

executive can conduct such attacks anywhere in the world at any time. While such restrictions on

due process have been historically allowed on battlefields and the arena of war, never before has

such authority been granted on civilian and peaceful spaces in the 800 years of due process

jurisprudence (Ofek 2010, 22).

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The balancing test used by the DOJ to justify their use of targeted drone strikes against

American citizens is couched in long-standing jurisprudence. Within Mathews v. Eldridge the

Court held that the proper test to evaluate the extent to which due process is required is

conducted by evaluating “first, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards; and finally, the

Government’s interest…” (Mathews v Eldridge 1976). The private interest that the individual

possesses in this case include several, among them their 4th and 5th Amendment liberties and their

most essential right to life. The following analysis indicates that the “risk of erroneous

deprivation of such interest” is quite high and in fact, it appears, at times inevitable through the

current justifications offered by the DOJ (Mathews v. Eldridge 1976).

Under an 8-1 plurality opinion, the Court held in Hamidi that detainees and enemy

combatants “must receive notice of the factual basis for his [or her] classification and a fair

opportunity to rebut the Government’s factual assertions before a neutral decision maker”

(Hamidi v. Rumsfeld 2004). The notion of a “neutral and detached judge” is among the most

basic tenants of the American legal system and has been seen as an immutable aspect of

providing due process (Ward v. Monroeville 1972). Providing a right to notice and an

opportunity to be heard “must be granted at a meaningful time and in a meaningful manner”

(Armstrong v. Manzo, 1965; Baldwin v. Hale, 1864; Fuentes v. Shevin, 1972). While the issue at

hand before the Court in this case was the right of due process for detainees in the legal system,

it is natural to extend the premise for protections to individuals who are not being targeted for

detainment but for execution. The DOJ argues that the review of a high level member of the

executive constitutes this neutral and detached judgment. Indeed, Attorney General Eric Holder

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declared before Northwestern University “the Constitution guarantees due process, not judicial

process” (Department of Justice 2012).  While the Court has held that certain types of hearings

or venues may be more appropriate than others, “an essential principle of due process is that a

deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing

appropriate to the nature of the case (Cleveland Board of Education v. Loudermill, 1985).

Semantics aside, the notion of relinquishing the most basic right to life and security of person to

an undisclosed member of government who will make determinations that are beyond review or

redress is inherently at odds with the ideals found within the above jurisprudence.

The Court has long warned that “[o]ne is entitled as a matter of due process of law to an

adjudicator who is not in a situation which would offer a possible temptation to the average man

as a judge … which might lead him not to hold the balance nice, clear and true” for even

purportedly fair adjudicators often “are disqualified by their interest in the controversy to be

decided is, of course, the general rule” (Turney v. Ohio, 1927). While the law mandates such

recusal for conflict of interest for members of the judiciary, such a standard is not present within

any released documents or statements for the executive branch when dealing with targeted

killings of US citizens under the purview of the AUMF.

Hamidi also raises important discussion on the issues of a notification of the factual

charges brought against detainees and a ability to fairly rebut the factual assertions. While the

DOJ again argues that the issue of expediency outweighs the individual’s interest of the

aforementioned rights, the very nature of the DOJ’s failure to provide any definition of

‘immediate’ and a lack of absolute certainty of an attack indicates that additional review is

merited on the weight and significance of these individual interests. The Court stated

unequivocally in Hamidi “any process in which the executive’s factual assertions go wholly

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unchallenged or are simply presumed correct without any opportunity for the alleged combatant

to demonstrate otherwise falls constitutionally short (Hamidi v. Rumfeld, 2004). Such a

notification would be inherently at odds with the logic of the DOJ, which is predicated on the

belief that an individual’s potential risk to national security warrants immediate execution before

questioning could occur. Targeted killings would by their very nature prevent any contesting of

evidence or charges, as the individual targeted would be quite unable to defend himself or herself

from beyond the grave.

During John Brennan’s recent confirmation hearings before the Senate, Senator Angus

King (ME-I) stated that the target killing of American citizens via the use of drone technology

was an inherent violation of the 5th Amendment to which the now CIA Director Brennan stated,

our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions which is very different from the decisions that are made on the battlefield as well as actions that are taken against terrorists because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take actions so that we prevent a future action, so we protect American lives (Emphasis added, Open Hearing on the Nomination of John O. Brennan to be Director of the Central Intelligence Agency 2013, 123).

While such a declaration garnered very little attention during the confirmation hearing, the

implications of such a standard of past versus future actions poses significant implications on our

right to due process. Western notions of justice have long cautioned against the ability of the

government to convict and punish individuals by creating laws meant to punish for actions

committed in the past or laws that seek to criminalize thought or potential future actions. Indeed,

as Madison noted, “the creation of crimes after the commission of the fact, or, in other words, the

subjecting of men to punishment for things which, when they were done, were breaches of no

law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most

formidable instruments of tyranny” (1787).

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The DOJ concludes that the deployment of a targeted killing “does not require… clear

evidence [of] a specific attack… in the immediate future” but instead, evidence that al-Qa’ida is

“continually plotting attacks” and that “the U.S. government may not be aware of all al-Qa’ida

plots as they are developing” an operational leader of al-Qa’ida who is “personally and

continually involved in planning terrorist attacks” poses an imminent threat that can be targeted

(Department of Justice 2013, 7-8). While such a system was entertaining in Steven Spielberg’s

film Minority Report, allowing the executive branch the ability to conduct lethal operations

against U.S. citizens when there is no requirement of proof of an imminent attack allows the

executive the ability to cast any association or history with Al-Queda or the other undisclosed

associate forces as potential justification for a targeted strike.

The Mathews balancing test that the DOJ seeks to employ to provide justification for

their policy does not seem to grant them the due process protection that is claimed within the

White Paper. This paper again concedes that the government has a legitimate interest in

protecting national security, however, the risk of deprivation of constitutional liberties and

safeguards are too high to grant the executive branch the ability to conduct such attacks are far

too high. The DOJ recognizes that warfare against terrorists is “drawn out, patient, sporadic…

and very difficult to know when or where the next incident will occur” (Department of Justice

2013, 8). Such difficulties only help to highlight the increased potential for the government to

unduly encroach upon fundamental due process protections. The interest of the government

cannot supersede the very foundation and ideals on which it is built upon. As the plurality

indicated in Hamidi, “we have long since made clear that a state of war is not a blank check for

the President when it comes to the rights of the Nation’s citizens” (Hamidi v. Rumsfeld, 2004).

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Additional domestic law exists which proscribes against the policies espoused by the

DOJ as legal and constitutional. 18 U.S.C. 1119 entitled Foreign Murder of United States

Nationals makes it a crime for “a National of the U.S. to kill or attempt to kill while such

national is outside the United States but within the jurisdiction of another country” (United States

Code 2006). Executive Order 12333-2.1 specifically states “no person employed by or acting on

behalf of the United States Government shall engage in, or conspire to engage in, assassination”

(Executive Order 1981). The White Paper addresses such domestic law through what could be

described at best as semantics. Such restrictions extend to any member of government and in

particular to those who possess an arsenal that could readily be employed against U.S. nationals.

The DOJ posits 18 U.S.C. 1119 is inapplicable to the activities conducted by the

executive branch because it proscribes only against unlawful killings but because their actions

are under the AUMF they are deemed lawful (Department of Justice 2013, 7). Such a declaration

is a simple utterance of fact and does not reflect on the constitutionality of the law and

accordingly additional exploration should be conducted on this specific issue as more

information is released from the administration or leaked by the media on the policy of targeted

drone strikes.

On the issue of assassination, the White Paper claims that assassination is an

inappropriate word to describe their action as they are conducting the killing of a belligerent of

war and the act is being conducted for national self-defense (Department of Justice 2013, 15).

While wartime targeted killings are currently permitted in times of war against military

personnel, the requirements illustrated within the White Paper do not require that individuals

being targeted for attack be actively involved in military efforts. Rather, these individuals must

be associated with and working with a group that the U.S. government has deemed an associate

Hatch 21

force. No description of the level of involvement, type of support, etc has been provided by the

government which indicates, insofar as can be understood by the public, that any individual who

can be considered a high ranking member of such organizations is targetable. Ultimately, until

restrictions on whom can be targeted and deemed an active militarily involved individual such

targeted killings could very well be against national and international law.

Section Four

Within the White Paper, the DOJ concludes, “there exists no appropriate judicial forum

to evaluate these constitutional considerations” meaning the judicial system is an inappropriate

venue to hear cases regarding this highly controversial program (Department of Justice 2013,

10). While the Paper does rather convincingly highlight the potential ramifications of the courts

reviewing past actions of the Executive on issues of national security, only Congress may

determine which cases are or are not appropriate for the Court to hear. The White Paper holds

that “matters intimately related to foreign policy and national security are rarely proper subjects

to judicial intervention” (Haig v Agee, 1981). While deference is often given to the military, the

Court has historically reserved the ultimate ability to intervene unless explicitly forbidden to do

so by Congress.

The ability of the judicial branch of the government to review the constitutional

ramifications of any government policy or action, especially which on their face seem in

contradiction to the notions and rights enshrined in the Constitution, has long been accepted by

the American public. Indeed, the Court held in 1932 that “the allowable limits of military

discretion, and whether or not they have been overstepped in a particular case, are judicial

questions” (Sterling v. Constantin, 1932). Similar sentiments were expressed in the dissent of

Hatch 22

Korematsu v. United States where Justice Murphy indicates that “like other claims conflicting

with the asserted constitutional rights of the individual, the military claim must subject itself to

the judicial process of having its reasonableness determined and its conflicts with other interests

reconciled” (Korematsu v. United States, 1944).

This paper is not calling for the Supreme Court to become the body that oversees the

drone warfare program but instead seeks to highlight the importance of independent review.

However, if the DOJ does prove to be correct in their position that the judicial branch is the

incorrect venue through which to provide an impartial arbiter outside of the executive branch,

other avenues exist and are currently employed under similar security and time-sensitive

constraints.

The Court recognized in Banco Nacional de Cuba v. Sabbatino that Congress, not the

Court, is the branch in the best position to undertake the “sensitive task of establishing a

principle not inconsistent with the national interest or international justice” (Banco Nacional de

Cuba v. Sabbatino, 1964). Indeed, Congress has begun to afford a great level of interest and

involvement in this issue due to the dangerous implications that come with the targeted killings

of U.S. citizens. In fact, a recent filibuster undertaken by Senator Rand Paul (KY-R) against John

Brennan was done with the sole intention of receiving additional information on the policies and

justifications that the executive has in place regarding these targeted killings (Economist 2013).

This display of concern garnered international media attention, which called for increased

transparency regarding the extent and size of the targeted drone program, and the situations in

which such force is permissible.

Hatch 23

The Senate has begun, at the most basic of levels, to discuss the potential for creating a

tribunal system similar to that of the FISA tribunal that currently exists to enact surveillance

warrants regarding issues of national security (Federal Judicial Center 2013). Such tribunals

could have the ability to review evidence and come to conclusions at a rather rapid rate as their

existing counterparts currently do which would mitigate the concerns expressed throughout the

White Paper. Additionally, such a tribunal could be composed only of individuals with the

highest levels of security clearance, which would prevent any risk to national security. Although

still troubling that the government could kill U.S. citizens without conducting a full trial in

adherence to the principles of the Constitution, such review would in fact satisfy the rules of war

and the constitutional requirements expressed in Hamidi. By replicating FISA courts they must,

by their nature, conduct their trials and review privately without notification of the individual in

question. Such implications still bear significant weight and are not dismissed by this paper.

However, the level of review afforded under such a court would be substantially more in depth

than the status quo and would be more in line with Constitutional principles.

CIA Director Brennan has in fact expressed interest in pursuing such an option does not

oppose the creation of such a panel of review. In a letter to Senators Feinstein and Chambliss

Brennan stated that “such a model may be useful as we consider the debate over targeted strikes”

and that “outside of [the] judicial process” these court’s would help provide an “independent

perspective” for the American’s who are senior operational members of Al-Qaeda (American

Civil Liberties Union 2013). The creation of such courts are not a simple matter as noted by the

former general counsel for the Director of National Intelligence who stated that legislators would

have to deal with “a number of thorny legal issues … with very complex implications” to create

an effective panel of review (CNN 2013). The difficulty of the creation of such a court is no

Hatch 24

reason for Congress to not expedite the process of review, as the implications of this issue are so

severe and at odds with our Constitution. When coupled with the unwillingness of the executive

branch to release any additional information regarding the legality or jurisprudence used to

justify these targeted killings, the U.S. Congress should act quickly to prevent any future

miscarriage of justice.

Conclusion

According to an exhaustive study conducted by the New America Foundation, the use of

drone technology has risen exponentially since President Obama came into office (2013). As this

new mode of war becomes the norm, our nations leaders must begin to question this radically

new use of state-sanctioned lethal force. As University of Southern California’s Gould School of

Law Mary Dudziak notes, “drones are a technological step that further isolates the American

people from military action, undermining political checks on … endless war” (New Yorker

2013).

The Department of Justice’s White Paper entitled “Lawfullness of a Lethal Operation

Directed Against a U.S. Citizen Who is a Senior/Operational Leader of Al-Qa’ida or An

Associate Force” incorrectly applies legal precedence and jurisprudence in an attempt to justify

the targeted killing program led by the executive branch of the government. Under the rhetoric of

national defense, the DOJ has sanctioned a radical expansion of executive power that threatens

the very principles on which our nation is founded. Congressional or court review of the targeted

killing program must be conducted in order to ensure that such a program is conducted in

accordance with domestic and international law.

Hatch 25

Although major media outlets and political commentators have increasingly called for the

Obama administration and the DOJ to release additional information regarding the logic and

justifications of this lethal targeted program, no significant additional information has been

released since February. Members of the government must continue to pressure the

administration to make such information public in order to ensure that the use of targeted drone

technology is in accordance with the principles and jurisprudence of the Constitution.

Independent review of the circumstances and facts surrounding evidence of ongoing

participation in Al-Qaeda or an associated force is a necessary component that is currently not

provided within the status quo to the detriment of our civil liberties.

Hatch 26

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