A Brown student imagines the White House’s most secret memo.
by Daniel Duhaime
Dear Mr. President:
Wearing a worn face and clean suit, John O. Brennan—your top counterterrorism aide and nominee for Director of the CIA—vigorously defended your administration’s counterterrorism policies at his February 7 confirmation hearing before the Senate Intelligence Committee. As a result of pressure from senators leading up to the hearing, the Justice Department released a white paper articulating the legal and constitutional basis for its strikes. While the white paper is unclassified and broad—unlike your Office of Legal Counsel’s memorandum specifically authorizing the targeted killing of Anwar al-Aulaqi in 2011—it offers your administration’s first comprehensive explanation of the targeted killing program maintained by the CIA and the Joint Special Operations Command (JSOC). At your request, this memo will analyze the constitutional legitimacy of targeted killings and the remedy proposed to limit potential abuse of executive power.
In order to judge the validity of the targeted killing program, we should evaluate your administration’s constitutional and legal claims on the basis of their narrow scope. First, the white paper does not address the minimum requirements necessary to permit targeted killing. Rather, it applies only to the unique case of an American citizen who: (1) is a “senior operational leader” affiliated with al-Qaida or another belligerent group in the War on Terror; (2) is engaged in an armed conflict as recognized by precedent; (3) is operating in foreign territory where capture is infeasible; and (4) has been determined by a “high-level government official” to pose an “imminent threat” of violent attack. Certainly your administration selected this construction deliberately, since articulating some minimum threshold would codify limits on the executive’s power and expose its conduct to external scrutiny. While such a scope may not encompass every targeted killing conducted on an American citizen, the ensuing debate over the legality and constitutionality of that action cannot occur in the abstract—the American people need to know what makes a drone strike legal. Operating under this premise, the government’s interest-balancing approach to constitutional challenges is the most effective and pragmatic means to deal with such a U.S. citizen. Furthermore, the uncertainty surrounding the geographic, statutory and constitutional limits on presidential authority will undermine the effectiveness of proposals to subject targeted killings to judicial scrutiny.
Precedent and long-since codified legal principles dictate that the United States Supreme Court should extend constitutional and statutory deference to the executive, particularly in regard to the military and foreign affairs. Article II of the U.S. Constitution vests the president with “the executive Power” and places the president as “Commander in Chief of the Army and Navy of the United States.” With respect to foreign affairs, Article II §2 further empowers the president “to make Treaties” and “appoint Ambassadors,” and §3 compels the president to “receive Ambassadors.” In aggregate, these powers constitute an explicit delegation of constitutional primacy over the country’s external affairs to the political process. “Prominent on the surface of any case held to involve a political question,” the majority explains in Baker v. Carr, “is found a textually demonstrable constitutional commitment of the issue to a coordinate political department…or a lack of judicially discoverable and manageable standards for resolving it.” The executive’s authority over the nation’s external affairs is in fact the quintessential constitutional commitment for the purposes of the political question doctrine, a premise furthered by the judiciary’s inability to effectively discover or manage the exercise of such authority. As a result, the executive should be afforded expansive deference over these inherently political questions such that if its construction is rationally concluded, it is permissible. Similarly, the Court extended statutory deference to the executive in Chevron v. NRDC. In that case, the majority reasoned that where statutory language is ambiguous, the executive’s interpretation should stand, so long as it constitutes a permissible construction of the statute. Thus, the executive ought to enjoy elastic deference over the judiciary if the president neither thwarts the statutorily expressed will of Congress nor violates the limits of the constitutional commitment by transgressing the textual authority of coordinate branches.
In sum, as long as you act within the current law, you can’t be sued for violating the Constitution. But does the law permit you to kill one of your own citizens?
The most significant source of statutory authority for the targeted killing of an American citizen affiliated with al-Qaida is the Authorization for the Use of Military Force (AUMF), passed in the wake of September 11, 2001. The AUMF provides the president with the prerogative to use “all necessary and appropriate force” against “those nations, organizations, or persons he determines planned, authorized, committed, or aided” the September 11 attacks. Unlike other provisions of statutory, constitutional and international law—which cannot consider the existence of non-state actors—the AUMF’s broad delegation was clearly intended to incorporate the modern threat of terrorism. In Hamdi v. Rumsfeld, the Court affirmed the executive’s right to constitutionally use force against an American citizen under the penumbra of the AUMF. “A citizen, no less than an alien,” Justice Sandra Day O’Connor writes in the plurality, “can be part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict against the United States.” As a result, the precedent clearly recognizes that American citizenship alone does not protect a non-state actor from the force authorized under the AUMF. However, the Court in Hamdi did not address whether the executive’s plenary powers under Article II were sufficient to justify the application of such force. It is likely for this reason that your administration seeks to identify only the sufficiency, rather than the necessity, of the conditions it sets forth for a lethal operation. While both precedent and statutory language seem to plainly affirm the use of lethal force on an American citizen who is a belligerent in an armed conflict, the most consequential issue left unanswered by the white paper is which authority—the executive’s authority or the authority conferred by the AUMF—is dispositive to such use.
Similarly, much of the outcry about targeted killings centers around their proliferation in countries such as Yemen and Pakistan, not popularly understood to be active battlefields like Afghanistan. However, this view is premised on an anachronistic legal framework that defines conflict as occurring between sovereign states. In Hamdan v. Rumsfeld, the Court held that a conflict between a sovereign state and a non-state actor was “not of an international character” for the purposes of the Geneva Conventions because it was not “a clash between nations.” Because the Conventions define an armed conflict according to the “legal status of the entities opposing each other,” conducting targeted killings in different countries does not alter their legality because the legal status of non-state actors is unchanged.
None of the three branches, moreover, have identified strict geographic limits on the scope of AUMF. “If…the ultimate purpose of the drafters of the Geneva Conventions was to prevent law avoidance…by developing de facto triggers,” write Geoffrey S. Corn and Eric Talbot Jensen, “then the myopic focus on the geographic nature of an armed conflict in the context of transnational counterterrorist combat operations serves to frustrate that purpose.” Indeed, constraining the War on Terror to some stringent geographic standard would neglect the fluidity of threats in a globalized world. Still, some limits on this geographic scope exist. To comply with international legal principles, such strikes require that the host nation consents or that they are unable or unwilling to do so. Applying these principles to the circumstances outlined in the white paper permits the executive to determine that an armed conflict exists in those nations in which targeted killings have been conducted because the threat posed by non-state actors is legally identical, whether in Afghanistan or Yemen.
The rights laid out in the Fourth and Fifth Amendments pose two types of constitutional challenges to the legality of the targeted killing of an American citizen. Your administration does not pretend to ignore or nullify these rights overseas; rather, it argues that the government interest at hand overwhelms the private interest of the individual. “An individual’s interest in avoiding erroneous deprivation of his life is uniquely compelling,” the Justice Department states. “At the same time, the government’s interest in waging war, protecting its citizens and removing the threat posed by members of enemy forces is also compelling.” In Mathews v. Eldridge, the Court held that while the termination of Social Security benefits invoked due process rights, no pre-termination hearing was necessary to satisfy those rights. To determine the amount of process due, they reasoned, the Court should weigh the competing interests at hand as well as the burdens imposed by providing additional process.
The Court in Hamdi v. Rumsfeld affirmed the legitimacy of this test, using it to weigh the due process rights of an American citizen challenging his detention after capture in Afghanistan. In this way, contesting a targeted killing on Fifth Amendment grounds is quite analogous to petitioner Hamdi’s claims. The circumstances of both cases, moreover, should dictate a similar result when competing interests are weighed, because during war the government’s interests are heavier, the risk of liberty deprivation without sufficient process is exacerbated and the costs of providing additional process increases drastically.
A similar balancing test is necessary to reconcile the Fourth Amendment’s prohibition on unreasonable searches and seizures with the statutory and constitutional ambiguity surrounding non-state actors. As a result of such legal uncertainty, the most similar case is Tennessee v. Garner, wherein the Court held that the use of deadly force by a law enforcement officer did not violate the suspect’s Fourth Amendment rights so long as the officer had probable cause to believe that the suspect posed a significant threat of death or injury. To come to this conclusion, the Court balanced the nature and quality of the intrusion against the government’s own interests.
This ruling was clarified in Scott v. Harris by specifying that determining whether a seizure was unreasonable is contingent on specific circumstances. In one of few tangential references to the bounds of the executive’s authority, the Department of Justice hastens to point out that the balancing test is far more stringently applied domestically than when applied to an American citizen abroad. As with the Due Process Clause, the government’s argument is uniquely compelling when limited to the narrow scenario that the Justice Department addresses. Irrespective of the target’s constitutional rights, the nature and quality of the intrusion—occurring in the context of an armed conflict abroad—serve to diminish private interests and augment the governmental interest at hand. The use of unmanned aerial vehicles cannot be construed to constitute an unreasonable search because—as the subject is an active belligerent in that armed conflict and thus a legitimate target under laws of war—the method of force is unrelated to its legality save where explicitly prohibited, which drones are not.
Chairwoman Dianne Feinstein (D-CA), other members of the Intelligence Committee and even your former Secretary of Defense Robert Gates have recently hinted at legislation that would apply judicial review to the targeted killing of citizens. Mr. Brennan agreed that the topic was “worthy of discussion,” a phrase likely employed by executive branch officials in response to proposals about how to limit executive power. Such legislation would be modeled on the Foreign Intelligence Surveillance Act of 1978 (FISA), which established the Foreign Intelligence Surveillance Court (FISC) to adjudicate secret, ex parte requests for surveillance warrants. The circumstances for proposals are analogous: the legislative branch, responding to a perceived aggrandizement of executive power, asserted itself to institute more robust oversight. While in theory a sound policy response, the constitutional questions surrounding such a court—as the history of FISA and FISC demonstrate—would become debilitating in times of crisis, compromising its objective of substantively constraining the executive.
First, the structure of the court presents both practical and constitutional questions. In a situation where the window of opportunity to conduct such operations is severely limited—to say nothing of the often even smaller window between when actionable intelligence is obtained and when the opportunity for action closes—the proposed drone court would be unable to effectively and efficiently judge such requests. Consequently, the only other manner in which to proceed would be for the court to impose a preemptive judgment about whether the government possessed enough evidence to justify a future targeted killing.
The criteria for such a decision are “inherently predictive judgments” that include the scope of the individual target, the imminence of the threat and the feasibility of capture. These seem to be inherently, explicitly and exclusively executive functions, unable to be transferred to a court technically and constitutionally ill-suited to judge them. There exists no judicially discoverable or manageable standard for evaluating such claims, and so to impose them would ironically—by substituting the reasoned decisions of elected officials for those of judges—make the process less accountable to the people.
Furthermore, the Bush administration’s warrantless wiretapping and subsequent amendments to FISA demonstrate that the constitutional questions surrounding a FISC-like court inhibit compliance and accountability. Although the Patriot Act of 2001 broadened FISA to more comprehensively account for the threats of terrorism following the September 11 attacks, President Bush nevertheless utilized a presidential order to authorize warrantless wiretapping in defiance of FISC. In 2008, Congress consented to the Bush administration’s actions by further amending FISA to retroactively legalize the majority of its warrantless wiretapping program. Moreover, as demonstrated by the conduct of FISC, this elastic deference is extended to the executive by both the legislative and judicial branches. In 2011, for example, FISC rejected none of the Justice Department’s applications for electronic or physical surveillance, amending only 30 and approving 1,745. Institutional inertia toward executive deference thus implicitly recognizes constitutional primacy over such national security issues and defeats the substantive purpose of check-and-balance oversight.
Applying the structure of FISC to an analogous drone court would thus repeat the mistakes of FISA, codifying immutable standards that cannot evolve to changing circumstances, transferring oversight authority from the appropriate legislative committees to an insular panel of judges, and providing no meaningful constraint on executive action during times of crisis. Instead of prescribing external standards that incentivize lowest common denominator compliance with the judicial branch, an internal approach—legislating an oversight panel consisting of the president, his senior national security team and senior members of the intelligence committees—would reintegrate the legislative branch into a regime of executive oversight.
If the Constitution possesses no explicit enforcement mechanism to limit executive power—if it is, in fact, the greatest aggrandizer of executive power—no judicial oversight can change that. Thus, the only feasible check-and-balance oversight must be accomplished internally, reassigning political questions to political branches and incentivizing executive compliance with the legislature’s constitutionally conferred power of the purse.
Mr. President, while I cannot speak to the morality of your drone policy, I can advise that this power is legal. As many serving in your position have been told before: use it wisely.
Daniel Duhaime ’14 is a History and Political Science concentrator.