Read: The killing machines
Of course, the comparison to death row is not perfect. While death-row inmates are incarcerated and no longer present any danger to society, drone strikes target people who aren’t in U.S. custody and who allegedly pose a threat to America. Then again, all federal death-row inmates were charged, afforded counsel, tried, convicted by a jury of their peers, and given years to pursue appeals. Even after all that, Sotomayor worries that they’ve had insufficient due process and insists that the Trump administration carried out their executions too hastily. Yet drone killings mete out death to individuals who have never been charged or tried. In some cases, the federal government does not even know the identity of the person it is killing––just that he or she is leaving a suspected terrorist safe house, or that a phone he or she is thought to possess was in communication with people considered “militants” by the U.S. military or the CIA.
“Over the past six months, this Court has repeatedly sidestepped its usual deliberative processes, often at the Government’s request,” Sotomayor wrote. “With due judicial consideration, some of the Government’s arguments may have prevailed and some or even many of these executions may have ultimately been allowed to proceed. Others may not have been. Either way, the Court should not have sanctioned these executions without resolving these critical issues. The stakes were simply too high.” In many drone strikes, the number of lives at stake is far higher: Unlike in Federal Bureau of Prisons executions, innocent bystanders are routinely killed.
The government justifies the risk to bystanders in part by calling the sites of drone killings “battlefields” in a “war,” but there seems to be neither physical limits to the battlefields nor any end to the war, especially because it is frequently waged in countries where war was never declared.
As for deliberative processes, the federal judiciary demands little of the federal government in drone litigation. Consider a recent case involving an American citizen in the rare position to sue. In a 2017 federal lawsuit, Bilal Abdul Kareem alleged that during the previous year, while working as a journalist in Syria, he was nearly killed on five separate occasions by attacks closely resembling U.S. drone strikes, including at least one strike from a Hellfire missile of the sort used on U.S. drones. He came to believe that he had been placed on the federal government’s secret kill list, and speculated in his complaint that he may have been mistaken for a member of al-Qaeda or another extremist group because he communicated with militants on his cellphone during his reporting.
His complaint asked the government to disclose five things in order to have meaningful due process: (1) whether the government had made a determination to kill him; (2) if yes, if it actually tried to kill him; (3) the process by which the government decided to target him; (4) the factual basis for deciding to target him; and (5) whether he was still a target. The government did not want to answer any of those questions and refused to even confirm that the U.S. engages in targeted killings via drones. It argued that Kareem lacked standing to sue, that his case raised nonjusticiable political questions, and that the state-secrets privilege allowed it to withhold answers to questions like Has this American citizen been placed on a list of people to extrajudicially kill if possible?