Where Is the Judicial Branch on Targeted Killings?

By Andrew Cohen

The American people deserve a better explanation from the courts about the legality of the Obama Administration's hit list

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When U.S. District Judge John D. Bates dismissed the al-Awlaki targeted-killing case last December on jurisdictional grounds, it barely interrupted the national conversation about terror law. The New York Times wrote about it. The civil liberties crowd complained. The Bushies crowed. But there was no great mainstream debate about the Obama Administration's secret justifications for unilaterally placing an American citizen, living abroad, on a so-called hit list.

Now that Anwar al-Awlaki is dead -- killed by a drone strike in Yemen on Friday -- that debate has arrived. It comes too late for him -- and for another American who evidently was with him at the time. But it may not be too late for any other Americans who are on the government's "target list" (whether they know it or not). Arrived, too, is the moment for the judicial branch to undertake a meaningful review of the Administration's controversial policy.

My Atlantic colleague Conor Friedsdorf has written an excellent piece here on the topic. Over at salon.com, Glenn Greenwald is apoplectic. Back at our site, James Joyner frames well some of the legal questions. In the Times Friday, Jack Goldsmith, an assistant attorney general during the Bush era, rushed out an op-ed that made the military and political case for the strikes while deftly avoiding the toughest legal questions. 

Me? I just want to point out that if we are to have a national policy of targeting U.S. citizens and killing them without trial, it's imperative that we have the policy substantively reviewed by the branch of government primarily responsible for defending the rights and liberties of those citizens. I've covered too many terror-law cases where executive branch claims were not what they seemed to be comfortable with the current one-branch approach.

Until now, only Judge Bates has spoken on behalf of the federal judiciary on the topic of the constitutionality of these targeted killings. He's not a bad judge as judges go. But he's not necessarily Solomon, either. The appointee of George W. Bush surely shouldn't be the end-all-be-all voice for the judiciary on this matter of life-and-death. A lieutenant shouldn't speak for the whole army. A general should.

Actually, nine generals. The United States Supreme Court this Monday begins its 2011 Term. So far, it has accepted 49 cases for review. None come close to tackling the pressing question of the moment: how far may the executive branch go in targeting its own citizens for sudden execution under the due process clause of the Fifth Amendment? It's the most important legal question of the weekend -- and perhaps of the coming decade.

And it's a question Judge Bates didn't come close to answering. Like any other savvy, self-respecting trial judge who knows when he's in over his head. Judge Bates punted the hardest issues in the case: back to the White House, to the federal appeals court, to the Congress, to al-Awlaki, and to the terror suspect's family, the ones who dutifully brought the lawsuit on his behalf long before he was dead. For 83 pages, in fact, Judge Bates punted like Ray Guy.

Then and now, but maybe more so now, Judge Bates' ruling reads like a relic from 2002, when the federal courts routinely bowed to the assertions of executive branch officials in terror law cases. Even after Abu Ghraib, even after we learned that Zacarias Moussaoui was not the "20th hijacker" and that Jose Padilla was not a "dirty bomber," Judge Bates accepted virtually at face value the arguments of the government's lawyers in the al-Awlaki case.

And it's not like he didn't first identify the monumental issues at hand. In a memorable passage, Judge Bates cogently listed all that is at stake:

Stark, and perplexing, questions readily come to mind, including the following: How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen -- himself or through another -- use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for "jihad against the West," and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States?

Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified?

When would it ever make sense for the United States to disclose in advance to the "target" of contemplated military action the precise standards under which it will take that military action? And how does the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?

Having raised these poignant questions, having teased the litigants and the rest of us, Judge Bates then stoically failed to answer them. He kicked the case out on jurisdictional grounds -- the matter was a non-justiciable "political question" the courts had no business answering, he said -- much in the same way that lower federal court judges in 2002 and 2003 kicked around the Jose Padilla and Yaser Hamdi cases before the Supreme Court intervened.

Judge Bates' ruling was a step backwards from the feisty and fair judicial review in terror law cases that began in 2004. He focused more on what al-Awlaki hadn't done than on what the feds had done and were clearly planning to do. He ruled that al-Awlaki (or his family) couldn't ask the federal courts for protection from a deadly drone strike unless he surrendered himself to authorities first. Judge Bates wrote:

The Court's conclusion that Anwar Al-Aulaqi can access the U.S. judicial system by presenting himself in a peaceful manner implies no judgment as to Anwar Al-Aulaqi's status as a potential terrorist. All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities. Anwar Al-Aulaqi is thus faced with the same choice presented to all U.S. citizens.

For all I know, al-Awlaki was the worst person in the world -- and everything that the feds said he was. Or he could be, as colleague Max Fisher notes, Anwar, who? Either way, I'm still uncomfortable -- and you should be, too -- about secret military analysis that places an American citizen beyond the reach of the succor of the due process and equal protection clauses. Wouldn't we all be better off with a full judicial review? Or some sort of Congressionally-authorized FISA-like review? What would Justice Anthony Kennedy do?

I do not know why the American Civil Liberties Union and the Center for Constitutional Rights did not appeal Judge Bates' ruling last December. Perhaps they felt that the 4th U.S. Circuit Court of Appeals also would take the easy way out. And perhaps they still do today. The ACLU told me Friday that it was exploring its legal options going forward. It should. It should press the passive judicial branch to do more than Judge Bates was able or willing to do.

It is vitally important that this issue be adjudicated fully -- on the merits and by more than one judge. Someone has to honestly and earnestly answer the questions Judge Bates raised. The Congress should demand it. The Obama White House should insist on it for its own sake. And the judiciary should remind itself of what Justice Sandra Day O'Connor said in June 2004, when she wrote the most important ruling yet in the legal war on terror.

"War is not a blank check," for presidential power, Justice O'Connor wrote in Hamdi v. Rumsfeld. Yet Judge Bates gave the Obama Administration just such a negotiable instrument last December. And on Friday the feds cashed the check. Judge Bates may be right. He may be wrong. But he shouldn't be the one who called the shot. That's why we have Article III of the Constitution, three levels of federal appellate review, and a Supreme Court.

This article available online at:

http://www.theatlantic.com/national/archive/2011/10/where-is-the-judicial-branch-on-targeted-killings/245979/