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31 Cardozo Law Review 405 (2009)


"Targeted killing" is extra-judicial, premeditated killing by a state of a specifically identified person not in its custody. States have used this tool, secretly or not, throughout history. In recent years, targeted killing has generated new controversy as two states in particular-Israel and the United States-have struggled against opponents embedded in civilian populations. As a matter of express policy, Israel engages in targeted killing of persons it deems members of terrorist organizations involved in attacks on Israel. The United States, less expressly, has adopted a similar policy against al Qaeda-particularly in the border areas of Afghanistan and Pakistan, where the CIA has used unmanned Predator drones to fire Hellfire missiles to kill al Qaeda leaders and affiliates. This campaign of Predator strikes has continued into the Obama Administration.

This Article explores the implications for targeted killing of the due process model that the Supreme Court has developed in Hamdi v. Rumsfeld and Boumediene v. Bush for detention of enemy combatants. Contrary to a charge leveled by Justice Thomas in his Hamdi dissent, this model does not break down in the extreme context of targeted killing. Instead, it suggests useful means to control this practice and heighten accountability. Our primary conclusion is that under Boumediene, the executive has a due process obligation to develop fair, rational procedures for its use of targeted killing no matter whom it might be targeting anywhere in the world. To implement this duty, the executive should, following the lead of the Supreme Court of Israel (among others), require an independent, intra-executive investigation of any targeted killing by the CIA. These investigations should be as public as is reasonably consistent with national security. Even in a war on terror, due process demands at least this level of accountability for the power to kill suspected terrorists.