A Leaked Justice Department Document Discusses Targeted Killing of U.S. Citizens Abroad

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A president’s wartime power has been a subject of both interest and tension since this county was founded.  The United States has seen President Adams’ infamous Alien and Sedition Acts, which punished any American citizen who spoke out against the government and legalized deportation of illegal aliens.  Then President Roosevelt authorized the internment of Japanese individuals living in the United States in 1942.  For both Adams and Roosevelt, preserving national security was more important than certain civil liberties guaranteed in the Constitution.

Most recently, the “War on Terror” has placed a similarly difficult balancing test in front of President Barack Obama.  On Monday, February 5, 2013, NBC News received a leaked Justice Department document outlining the legal rationale for targeted killing of United States citizens who are living in a foreign country and are senior operational leaders of al-Qa’ida or are involved with an associated force, or co-belligerent group, of al-Qa’ida.  The document outlines the legal justification for the Justice Department’s position.  However, the justification lies for only a narrowly defined circumstance.  First, an “informed, high-level official of the U.S. government [must determine] that the targeted individual poses an imminent threat of violent attack against the United States.”  Second, capture of the individual must be infeasible.  Finally, the operation must be in accordance with the four principles of the applicable laws of war governing the use of force, namely necessity, distinction, proportionality, and humanity.   The document thus admits that if the use of force would cause an excessive amount of civilian causalities in relation to the military interest in the operation, the principles listed above would be violated.

The document’s analysis also speaks to some critical Constitutional issues that have been raised both in media coverage surrounding the document and in CIA Director nominee John O. Brennan’s confirmation hearings.  The first section of the document identifies the power stemming from the Authorization of the Use of Military Force (AUMF), signed in 2001 following the 9/11 attacks, and states that the use of deadly force against U.S. citizens abroad is not only legal, but citizenship is irrelevant.  Citing Hamdi v. Rumsfeld, 542 U.S. 507 (2004) and Ex Parte Quirin, 317 U.S. 1 (1942), the document declares that the military “may constitutionally use force against a United States citizen who is a part of enemy forces.”  Then, and perhaps more interestingly, the legal analysis shifts to a discussion of the Fourth and Fifth Amendment rights implicated in targeted killings.

Admitting that the right to due process and the right against unreasonable searches and seizures remain with a citizen who is abroad, the document delineated an analysis of the Matthews v Eldridge balancing test, requiring a measurement of the private interest at stake (here, the avoidance of “erroneous deprivation of human life”) against the government’s asserted interest, specifically waging war, protecting citizens, and removing a threat posed by enemy forces.  The Justice Department ultimately determined that targeted killings do not violate an individual’s due process rights.

The Fourth Amendment to the Constitution protects individuals from unreasonable searches and seizures.  Once again, the constitutionally of a seizure depends on a balancing test that weighs “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”  Tennessee v. Garner, 471 U.S. 1 (1985).  The leaked document noted that in domestic law enforcement situations, the Supreme Court has upheld the use of deadly force when “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”  While acknowledging that domestic situations are different than foreign-targeted killing of suspected terrorists, the document nonetheless simply states that so long as this narrowly defined situation is present, the Fourth Amendment will not be violated.

One issue repeatedly discussed by interest groups such as the American Civil Liberties Union (ACLU), as well as law professors and reporters is the document’s definition of “imminent threat.”  The definition has been attacked for being too broad, giving almost unlimited power to declare a threat imminent.  For example, for a threat to be considered imminent, there need not be actual evidence that a specific attack on U.S. persons will take place in the immediate future.  Because of the nature of terrorist attacks, the Justice Department asserts that the United States has a limited window of opportunity to defend itself.  Imminence must “incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans.”  In sum, the nature of an al-Qa’ida threat requires a broader understanding of imminence, to be determined on a more case-by-case basis.

One cannot forget, however, that amidst the hot debate concerning our nation’s foreign policy is the emergence of a new creature: drones, or unmanned aerial vehicles (UAVs).  The fact that drones are doing much, if not all, of the targeted killings discussed above raises a whole new set of ethical and legal questions.  The era facing President Obama’s administration is vastly different than those of Adams or Roosevelt.  Brennan, speaking to a senate panel at his confirmation hearing, highlighted yet another relevant and controversial question: “What’s that appropriate balance between the executive, legislative and judicial branch responsibilities in this area?”  In 2013, what is the role of the executive branch when dealing with highly confidential and often time-sensitive matters of national security?  How far is the reach of the president’s wartime arm?

While these questions remain unresolved, at least for now, some prominent Washington leaders are calling for a form of judicial review to take place before the drones are deployed.  The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 and governs surveillance of people in the United States for the purpose of collecting foreign intelligence.  The FISA allowed for the creation of a Foreign Intelligence Surveillance Court that would hear requests for warrants, among other things.  The idea of a “drone court” has been mentioned as a way to allow a neutral court to determine whether there is enough evidence to place an American citizen on a kill list.  Not everyone, however, is keen on the idea.  Hina Shamsi, director of the ACLU’s National Security Project, noted that a drone court would be a “step backward”, preferring extradition and criminal prosecution of suspected terrorists. “I strongly agree that judicial review is crucial,” Shamsi said, “But judicial review in a new secret court is both unnecessary and un-American.”  It is also doubtful that a drone court, if established, would grant any more transparency to the American people.  While the appropriate response to these Constitutional and policy questions is perhaps the common adage “only time will tell,” the irony is that for any American citizen whose life hangs in the balance, time is of the essence.