America’s Shadow Death Row

The government does not exclusively kill people who are on death row. It condemns many to die by drone strike.

Last week, Supreme Court Justice Sonia Sotomayor published a dissent in a death-penalty case that flagged the striking number of killings taking place in the last months of the Trump administration. “After seventeen years without a single federal execution, the Government has executed twelve people since July,” she wrote, calling it “an unprecedented, breakneck timetable of executions.” As an opponent of capital punishment, I am pleased to see it criticized. But Sotomayor’s claim that the federal government went 17 years without executing anyone is misleading, because the federal government does not exclusively kill men and women who are on death row. It maintains a kill list of people whom it condemns to die in secret and kills with drones.

These killings began under President George W. Bush, exploded under President Barack Obama, and continue today. They constitute the majority of federal executions. Just 50 people are on federal death row. (Add in the 50 states and America has approximately 2,553 total death-row inmates.) According to the Council on Foreign Relations, Obama authorized 542 drone strikes that killed an estimated 3,797 people, including 324 civilians. The Bureau of Investigative Journalism has higher death counts. And the Trump administration is thought to have accelerated the pace of drone killings, though its lack of transparency makes counting difficult.

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?

Last week, on the same day that Sotomayor published her death-penalty-case dissent, the U.S. Court of Appeals in Washington, D.C., sided with the government. It ruled that Kareem lacks standing because his complaint fails to present enough evidence that the five aerial bombings he survived were in fact U.S. drone strikes. The government, which possesses the truth, will not be forced to reveal it, and because of such outcomes, America’s shadow death row will continue to operate in secret, with no due process or accountability.

Bush started drone killings; Obama expanded them, belatedly adding insufficient guardrails and transparency; and Trump reduced the guardrails and the transparency. No one who isn’t legally compelled to keep quiet knows the full extent of the extrajudicial executions that the federal government has carried out over the past four years, or the number of innocents who died in the process.

President Joe Biden has a moral obligation to change course in his earliest days in office. Unless he trusts that the Trump administration has been moral in its use of drone strikes, that it was correct to undo some of the Obama administration’s guardrails, and that it was honest in its internal accounting of how many innocent people it killed, he should impose a moratorium on drone strikes at least long enough to assess the carnage of the past four years and how American drone policy should change to avoid immoral killings.

And the next time that a drone case makes it to the Supreme Court, the justices should better protect our rights. A secret kill list, kept under the auspices of undeclared or perpetual war, is incompatible with a Constitution that forbids deprivations of life and liberty without due process.