What's Wrong With Having a Secret Assassination Court?

By Wendy Kaminer

The Obama Administration has considered establishing a special court to rubber-stamp targeted killings. But that won't do a thing to take care of civil libertarians' objections.

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Jonathan Ernst/Reuters

At least the president's appropriation of power to summarily kill Americans is extra-legal. It hasn't been codified or approved by any other branch of government. In justifying assassinations, Obama can't invoke any congressional or judicial actions; he can only repeat Richard Nixon's infamous maxim: "If the president does it, it's not illegal."

So it's not surprising to learn that the Obama Administration has considered establishing a special, secret court to authorize targeted killings. Modeled after the FISA court, which authorizes national-security-related domestic surveillance, a Targeted Assassinations Program (TAP) court -- my name for it -- would provide judicial cover for the president's actions without providing substantive judicial review.

"Having the executive being the prosecutor, the judge, the jury and the executioner all in one is very contrary to the traditions and the laws of this country," newly elected Maine Senator Angus King asserted, in support of proposals for a TAP court. But in essence, the executive would remain prosecutor, judge, and jury, even if the law required a little judicial approval.

The FISA court has a record of granting virtually all surveillance applications. A TAP court would probably prove equally obedient. Even if its judges wanted to provide due process, they'd be practically incapable of doing so. An alleged or allegedly aspiring terrorist targeted for killing would never appear before them or be afforded any meaningful representation in absentia.

What's the alternative to a rubber stamp (or velvet glove) court? Political pressure, and perhaps the willingness of the federal judiciary to accept after-the-fact challenges to the legality of targeted killings. Maybe a court reviewing an assassination would find that, under the circumstances, it was a necessary and legitimate executive action. Maybe not. But at least a judicial finding that a killing was justified would follow an adversarial proceeding based on a particular set of facts.

Establishing a secret system for prior judicial authorization, which might well be based on the administration's frighteningly broad definition of "imminence," would imbue the president with much broader, unaccountable authority. Claims of "necessity" for kills, like those advanced by the White House, are not amenable to prior judicial review.

So the Israeli Supreme Court opined in a 1999 case sustaining challenges to administrative rules authorizing torture when government interrogators considered it "necessary." The court held that agents who torture suspects should be allowed to raise a "necessity defense," if they're indicted. But especially in the absence of legislation, the justices declined to approve "permanent directives setting out the physical interrogation means that may be used under conditions of 'necessity:'"

The court explained:

The 'necessity' defence does not constitute a source of authority, allowing GSS investigators to make use (of) physical means during the course of interrogations. The reasoning underlying our position is anchored in the nature of the "necessity" defence. This defence deals with deciding those cases involving an individual reacting to a given set of facts; It is an ad hoc endeavour, in reaction to a event. It is the result of an improvisation given the unpredictable character of the events ... Thus, the very nature of the defence does not allow it to serve as the source of a general administrative power.

Are targeted killings, like the torture of terror suspects, reactive "improvisations" necessitated by "unpredictable" events? Administration officials would answer "no." They characterize the killings as proactive deterrents to predictable events. They want us to trust them to make accurate predictions that particular people are planning particular attacks, although their broad definition of imminence doesn't seem to require very particular evidence to back up their predictions. In fact, they appear to be improvising based on a fear of not accurately anticipating attacks.

That fear is understandable, but it's not a fact that supports a claim of imminence or necessity. The president advances a right of preemptive self-defense to kill Americans. In essence, he argues that he and his appointees have inherent power to stand their ground in the face of perceived threats. He wants us to trust him to perceive "imminent" threats accurately and to act against them without harming innocent people. "Trust us," the Administration would whisper to a special assassinations court, and, in this case, it's not hard to predict the court's reply.


This article available online at:

http://www.theatlantic.com/national/archive/2013/02/whats-wrong-with-having-a-secret-assassination-court/273028/