The Targeted Killing Memo: A Weak Brief Begging for a Court Case

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The Obama Administration finally offers up its legal justifications for drone strikes, describing a shaky policy that already is being challenged in federal court.

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It comes years too late for U.S. born Anwar Al-Awlaki and his teenage son, born in Denver, who both were killed by U.S. drone strikes in 2011. And it comes years too early for any Supreme Court review. But it seems to me that there are at least two ways to view the Justice Department's newly leaked "White Paper," which at long last identifies some of the legal justifications for the extrajudicial killings abroad of certain American terror suspects.

You may consider the pronouncements contained in the memo the official policy of the United States, in which case the document represents a breathtaking vitiation of the most basic constitutional right that Americans have -- the right not to be suddenly killed by our government without any judicial review, based alone on secret evidence and classified accusations leveled by and to executive branch officials.

Alternately, you can consider the 16-page memo as a brief offered up for review and consideration by one branch of government, an advocate's paper designed to carve out a vast expanse of executive branch power while practically daring the other two branches of government to do something about it. Can't you hear the DOJ lawyers telling one another as they jotted down their grand conclusions: "Let's run this one up the flagpole and see who salutes"?

Just 24 hours or so after NBC's Michael Isikoff broke this big story, most of the commentators who have read the memo (including The Atlantic's own Conor Friedersdorf) have analyzed it as the policy of the Obama Administration. Fair enough. I'd like to focus here instead on the notion that this is more like a brief in search of a case; an argument in search of a response; the sound of one hand clapping.

This is, you could argue, yet another aggressive memo written by a bunch of lawyers to justify what their client wants to do -- a scenario replicated a million times each year in law offices all over this country. It is a memo whose conclusions have never before been addressed by the courts. It is a memo the rationale for which has never been debated adequately on Capitol Hill. It's a pitch, the staking out of a position in advance of a Washington battle yet to come.

So while I'm willing to accept that this represents this administration's policy toward such terror suspects, I'm not remotely ready to conclude that this policy is either constitutional or likely to survive a political challenge from Congress. Indeed, the nature of presidential power being what it is, almost as disturbing as the conclusions in this memo is the timidity shown (so far) by federal judges and lawmakers in refusing to challenge it.

***

Here are five quick takeaways from the memo:

1. Lack of judicial review. It's not just that the executive branch wants to decide for itself which U.S. citizens can be killed abroad. It's also that the administration sees no role whatsoever for the courts in reviewing such a policy, either before an American citizen is targeted abroad or after the killing takes place. From page 10 of the memo:

Finally, the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional questions. It is well-established that "matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention," because such matters "frequently turn on standards that defy judicial application," or "involve the exercise of a discretion demonstrably committed to the executive or the legislature" (internal citations omitted by me).

Were a court to intervene here, it might be required inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qa'ida or its associated forces. And judicial enforcement of such orders would require the Court to supervised inherently predictive judges by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

This is a version of the same argument the Bush Administration offered up four times in four years before the United States Supreme Court. In each instance, in four cases, the justices refused to agree that the courts don't have the power to review terror law policies which directly undermine core rights. The idea that the justices couldn't hear the ultimate "due process" case -- due process in this instance being a secret White House national security meeting before a predator drone kills a suspect -- is inconceivable, even for the Roberts Court.

2. Hamdi. Speaking of the Supreme Court, it's ironic, to say the least, how many times the Obama lawyers cite the Supreme Court's 2004 decision in Hamdi v. Rumsfeld to justify the "lethal operations" policy. I counted at least eight times in 16 pages. But the Hamdi decision, you may remember, was a defeat for the Bush Administration over its detention policies. It was the decision in which Justice Sandra Day O'Connor declared: "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Due process, the court's syllabus in Hamdi tells us, "demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." The Obama lawyers are citing this case for the proposition that no such "neutral decisionmaker" is necessary or required for the sudden killing of a US citizen abroad; that America may kill a U.S. citizen abroad without notice but must give him a hearing if were seek to detain him.

3. Congress. The very first specific argument the Obama lawyers make on behalf of their "lethal operation" policy, on page 2 of the memo, reminds the world that Congress is largely responsible for it. "Congress has authorized the President to use all necessary and appropriate force" against al-Qa'ida," administration attorneys argue, and federal lawmakers did so through the 2001 Authorization for Use of Military Force. The AUMF was enacted on September 14, 2001, while the fires at the World Trade Center site still smoldered.

All it would take to undercut the Obama Administration's "lethal operations" policy would be for Congress to expressly limit the extent of its granted authority. But this isn't that type of Congress -- and the White House knows it. By Tuesday afternoon, for example, Representative Mike Rogers, the Republican chairman of the House Permanent Select Committee on Intelligence, declared that he agree[d] with the Justice Department's conclusion that targeting a senior leader of al-Qa'ida is a lawful act of national self-defense in these circumstances."

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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