National security was at stake, President Richard Nixon contended, when he ordered the FBI early in the 1970s to wiretap the telephones of suspected domestic subversives. The threat was too serious and too urgent, Nixon and his lawyers reasoned, to go to court first for warrants to authorize the taps.
In a unanimous opinion, the Supreme Court decisively rejected Nixon’s claim of unilateral authority to order electronic surveillance in the name of national security. Justice Lewis F. Powell’s opinion in United States v. U.S. District Court, 407 U.S. 297 (1972), noted “the difficulty of defining the domestic security interest” and “the danger of abuse” in ruling that the executive could not bypass the courts even when supposedly necessary to keep the country safe.
Today, the Obama administration is claiming an arguably more far-reaching executive power: the power to kill a U.S. citizen thought to be actively engaged in plotting terrorist attacks against the United States. From the administration’s view, the need to give the executive a relatively free hand is as clear as it was to Nixon. And the threat posed by Al Qaeda terrorists is evidently much more real than the supposed danger posed by the Vietnam-era political dissidents.
Despite its best efforts, however, the administration has not made a convincing case for the necessity of bypassing the courts in carrying out targeted killings. The claimed power to kill a U.S. citizen away from an active combat zone differs in kind from the president’s traditional powers as commander in chief. And the practical problems that administration officials point to, including the need for secrecy and speed, can be accommodated by a carefully designed system of judicial review.
Attorney General Eric Holder laid out the legal rationale for targeted killings of U.S. citizen-al Qaeda terrorists in rationale in a speech at Northwestern University Law School last week (March 5). Without naming any individual, Holder was evidently attempting to justify the use of a CIA-controlled drone in the Yemeni desert in late September to kill Anwar al-Awlaki, a U.S. citizen and ranking Al Qaeda operative. Awlaki was thought to have been the architect of the foiled bombing attempt of a U.S.-bound aircraft on Christmas Day 2009 by “underwear bomber” Umar Farouk Abdulmutallab as well as the foiled plot against U.S. cargo planes the next fall.
On paper, the administration’s rules appear to be calibrated to comply with legal as well as moral requirements. Holder laid out three conditions (“at least”) that would make it lawful to use “lethal force” against a senior al Qaeda leader who was “actively engaged in planning to kill Americans.” The government first must have 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 “must be conducted in a manner consistent with applicable law of war principles” – which he later listed as including the need to target only military or cooperating civilians and to minimize collateral damage.
Holder also acknowledged the domestic law consideration, taken straight from the Bill of Rights, that the government cannot deprive a citizen of “life, liberty or property” without “due process of law.” But he was unbending in rejecting any judicial role for passing on the executive’s decision to kill a U.S. citizen. “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security,” Holder said. “The Constitution guarantees due process, not judicial process.”
National security operations are “core functions” of the executive branch, Holder explained, that require decision-making based on information and expertise that only the executive branch can possess in real time. To buttress the point, Holder pointed to an unspecified court decision that he said “makes clear” that the president needs no judicial approval before using force against a senior leader of a foreign terrorist organization “even if that individual happens to be a U.S. citizen.”
In that decision, U.S. District Court Judge John Bates in December 2010 rejected a suit by al-Awlaki’s father seeking to nullify the targeted killing order against his son. In addition to rejecting the father’s legal standing to bring the suit, Bates also ruled that the suit presented a political question, not one for the courts to decide.
The course of the suit, however, belies one of the administration’s arguments that time considerations preclude the courts’ involvement. Al-Awlaki was on the target list for well over a year before his death. The administration had ample time to lay out the evidence against al Awlaki. And contrary to Holder’s suggestion judicial review could be accomplished without putting a judge in the situation room to pass on specific tactical decisions.
The Foreign Intelligence Surveillance Court, created by Congress to review requests for foreign intelligence wiretaps, could be a model to look to in creating judicial review of targeted killings, as the New York Times has advocated editorially. That court has provided some independent check on potential executive branch overreaching even if its record of nearly always approving electronic surveillance requests disappoints civil libertarians.
Obama is not Nixon, and al Qaeda is not SDS. But the courts have a role in protecting U.S. citizens’ rights even in times of real wars and real dangers. A judicial process for targeted killings could safeguard those rights without jeopardizing national security.