Document Type

Article

Publication Date

2013

Publication Information

48 Wake Forest Law Review 829 (2013)

Abstract

The United States identifies particular people as especially dangerous members of al Qaeda, the Taliban, or associated forces, and then kills them. Critics insist that this targeted killing is illegal; some go so far as to call it assassination. The drone strike that killed Anwar al-Awlaki, an American citizen, generated furious criticism for purportedly violating his due process rights.

In spring 2013, President Obama responded in a wide-ranging speech on national security policy. On the topic of drones, he stated that terrorists are targeted only if they constitute “a continuing and imminent threat to the American people.” He announced that he had signed, the day before, a new Presidential Policy Guidance to codify “clear guidelines, oversight, and accountability.” That was not all. Going forward, he said the administration would consider additional proposals to control targeted killing. Some of these proposals have “virtues in theory,” he said, but present “problems in practice.” President Obama mentioned in particular FISA-style courts and independent, intra-executive oversight boards. In short, the “due process” of targeted killing is evolving, and is still shrouded in some secrecy.

To contribute to this evolution, this Article suggests two proposals based on two traditional elements of due process — notice and an opportunity to be heard before an unbiased decision-maker. Regarding notice, we suggest a default rule of transparency: The United States should publish the names of persons who satisfy its targeting criteria, at least where publication would not unreasonably compromise security. As for an opportunity to be heard, a key problem is to reconcile a hearing with the Constitution’s allocation of the commander-in-chief power to the President. Administrative law’s template for formal adjudication suggests a means to do so. Along these lines, the process for target selection would involve an adversarial (though obviously ex parte) hearing before an administrative judge (“AJ”). Yet the AJ’s decision would be subject to the President's plenary review, unlike an order from an Article III judge.

One virtue of these proposals is that they do not depend on legislative or judicial action that may never come. They instead are steps that the executive can and should take on its own to honor the Constitution and the laws of war.

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