Wednesday, May 2, 2012
The Federalist Society recently posted a pod-cast debate on the legal rationale for targeted killings of U.S. citizens, featuring Professors Michael Lewis (Ohio Northern) and Stephen Vladeck (AU/WCL). Dean Reuter moderated.
The discussion followed on the heels of AG Eric Holder's speech outlining the administration's case for targeted killing. Lewis opens the discussion by claiming that Holder's criteria for designating a target would be sufficient, if they were mandatory. Here's the portion of Holder's speech that Lewis referenced:
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
Lewis examines each of these and gives his take on "operational" leader of al Qaeda (not just any al Qaeda member, or supporter), "associated forces" (which are allowable targets under the gloss that the courts have put on the AUMF),the government's determination of "imminent threat" (looser than the immediacy that we understand in a domestic law-enforcement sense), the feasibility of capture, and law of war principles--proportionality and necessity (and how these overlap with the other considerations).
Vladeck agrees that the government could target U.S. citizens under certain circumstances, but questions when and how: What process should the government use to ensure that Holder's criteria (or others) are satisfied? Vladeck looks to the due process analysis in Hamdi as a model, arguing that at least these due process procedures--applicable when the government takes a citizen's liberty--should be in place before the government takes a citizen's life. (Holder himself referenced the balancing test in Mathews v. Eldridge, but did not give a precise formula for the process due before the government targets and kills a citizen.) Vladeck argues that a FISA-like, ex ante judicial review is a bad idea, because it would lend legitimacy to targeted killings and entrench the government's power. Instead, Vladeck argues for judicial review and damage claims after the killing ( allowing government officials to assert qualified immunity and even the state secrets privilege)--thus helping to ensure that the government would take care in its decisions.
The two also discuss whether the authority should extend off the "hot battlefield" and issues related to transparency in government decisionmaking.
Vladeck noted how odd Holder's speech was, given that it said very little and that the government has refused to turn over any formal written legal rationale for the program--because the speech only refocuses attention on this, without settling anything. (For the same reasons, Brennan's recent speech only adds to the odd-ness.)