Fire When Ready

Instead of convincing critics, Attorney General Holder’s defense of the Obama administration’s targeted killing policy earlier this month seems to have emboldened them. "The idea that the executive branch can be judge, jury, and executioner … totally undoes the system of checks and balances," charged American Civil Liberties Union (ACLU) Executive Director Anthony Romero after Holder’s talk at Northwestern University’s law school. Romero and others have been especially scathing about the lawlessness of last fall’s drone killing in Yemen of U.S. citizen and al Qaeda affiliate leader Anwar al-Awlaki.

In this new age of drone warfare, probing the constitutional legitimacy of targeted killings has never been more vital. The Obama administration has carried out well over 200 drone strikes in its first three years, and the practice promises to ramp up even more in the next few years as the United States decreases its footprint in Afghanistan and relies even more heavily on special operations and covert actions centered around the use of drones. There are contested legal issues surrounding drone strikes, and — in contrast to issues like military detention and military commissions — courts have not pushed back against the presidency on this issue. But judicial review is not the only constitutional check on the presidency, especially during war. Awlaki’s killing and others like it have solid legal support and are embedded in an unprecedentedly robust system of legal and political accountability that includes courts but also includes other institutions and actors as well.

When the Obama administration made the decision to kill Awlaki, it did not rely on the president’s constitutional authority as commander in chief. Rather, it relied on authority that Congress gave it, and on guidance from the courts. In September 2001, Congress authorized the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines" were responsible for 9/11. Whatever else the term "force" may mean, it clearly includes authorization from Congress to kill enemy soldiers who fall within the statute. Unlike some prior authorizations of force in American history, the 2001 authorization contains no geographical limitation. Moreover, the Supreme Court, in the detention context, has ruled that the "force" authorized by Congress in the 2001 law could be applied against a U.S. citizen. Lower courts have interpreted the same law to include within its scope co-belligerent enemy forces "associated" with al Qaeda who are "engaged in hostilities against the United States."

International law is also relevant to targeting decisions. Targeted killings are lawful under the international laws of war only if they comply with basic requirements like distinguishing enemy soldiers from civilians and avoiding excessive collateral damage. And they are consistent with the U.N. Charter’s ban on using force "against the territorial integrity or political independence of any state" only if the targeted nation consents or the United States properly acts in self-defense. There are reports that Yemen consented to the strike on Awlaki. But even if it did not, the strike would still have been consistent with the Charter to the extent that Yemen was "unwilling or unable" to suppress the threat he posed. This standard is not settled in international law, but it is sufficiently grounded in law and practice that no American president charged with keeping the country safe could refuse to exercise international self-defense rights when presented with a concrete security threat in this situation. The "unwilling or unable" standard was almost certainly the one the United States relied on in the Osama bin Laden raid inside Pakistan.

These legal principles are backed by a system of internal and external checks and balances that, in this context, are without equal in American wartime history. Until a few decades ago, targeting decisions were not subject to meaningful legal scrutiny. Presidents or commanders typically ordered a strike based on effectiveness and, sometimes, moral or political considerations. President Harry Truman, for example, received a great deal of advice about whether and how to drop the atomic bomb on Hiroshima and Nagasaki, but it didn’t come from lawyers advising him on the laws of war. Today, all major military targets are vetted by a bevy of executive branch lawyers who can and do rule out operations and targets on legal grounds, and by commanders who are more sensitive than ever to legal considerations and collateral damage. Decisions to kill high-level terrorists outside of Afghanistan (like Awlaki) are considered and approved by lawyers and policymakers at the highest levels of the government.

The lawyers and policymakers are guided in part by Supreme Court and lower court decisions that, in the context of reviewing military detentions, have interpreted the meaning, scope, and limits of the congressional authorization to use force. The executive branch also has tools at its disposal — an elaborate intelligence bureaucracy, precision weapons, and computer targeting algorithms — to minimize collateral damage in war like never before (indeed, these tools sometimes force an operation or target to be avoided or aborted). We do not know the full details of targeting decisions, but we do know — from administration speeches and press coverage of internal deliberations — that Obama administration policymakers and lawyers seriously grapple with the legal limits of their authorities, construe them narrowly to meet the case at hand, and are constrained in who they target.

Congress too is involved. The executive branch only targets enemy forces that fall within the parameters set by Congress in 2001. All major targeting operations conducted as "covert actions" must, under laws in place before 9/11, be conducted in conformity with presidential "findings" and reported to congressional intelligence committees. These committees lack a formal veto, but they have many ways to push back against covert actions they dislike. House Minority Leader Nancy Pelosi is said to have scaled back a covert operation in 2004 to influence the outcome of elections in Iraq by complaining to the White House, while the House Intelligence Committee reportedly persuaded the Obama administration not to arm the Libyan rebels in 2011. Operations by the U.S. military are also reported to and scrutinized by congressional armed services committees through less formal means.

More broadly, Congress as a whole is well aware of the president’s targeted killing program, and many congressional committees have held public hearings on targeted killing in the last few years. And yet, in contrast to its actions to tighten the president’s traditional military authorities in other contexts (like interrogation, military detention, and military commissions), Congress has not tightened the president’s power to target. Instead, Congress chose to reaffirm the 2001 authorization on which the president has rested his targeting practices in December 2011, and to bless the judicial construction of the statute that extended the president’s authorities to co-belligerents like Awlaki, all without a word about limitations on targeted killing. Congress did this against the backdrop of many public reports that the 2001 statute was relied on to kill Awlaki.

The targeted killing of Awlaki was also subject to a limited but important form of judicial scrutiny. In 2010, the ACLU and the Center for Constitutional Rights brought a novel lawsuit that sought to enjoin the president from killing Awlaki. Judge John Bates of the U.S. District Court for the District of Columbia dismissed the case, in part because of "the impropriety of judicial review." Bates explained that the Constitution places "responsibility for the military decisions at issue in this case ‘in the hands of those who are best positioned and most politically accountable for making them’" — Congress and the president. This ruling, based on extensive precedent, is almost certainly right. Commanders in chief have always had discretion over targeting decisions in wars authorized by Congress. No court has ever suggested that judicial approval for these decisions was appropriate or necessary. This is so even though the U.S. military killed U.S. citizens in the Civil War and most likely in World War II as well, when some fought in the Italian and German armies. The Supreme Court itself has ruled — in the context of military commissions and military detention — that U.S. citizenship does not by itself preclude the commander in chief from exercising traditional forms of military force.

This is the background against which to assess Attorney General Holder’s claim that the Constitution "guarantees due process, not judicial process." Holder was referring to the Fifth Amendment’s prohibition on taking life without due process, a further legal limitation on the targeted killing of U.S. citizens. Critics belittled Holder for distinguishing due process from judicial process, but Holder is right. The Supreme Court has ruled in many contexts that due process does not always demand judicial scrutiny. It has also ruled that the type and extent of process due depends on the nature and circumstances of the deprivation, including a balance between the interests of the individual and the government.

A U.S. citizen’s interest is obviously at its height when he is targeted with lethal force. The government’s interest is at its height when it seeks to incapacitate a threatening enemy in a congressionally sanctioned war. Holder only defended the wartime authority to kill a U.S. citizen who presents "an imminent threat of violent attack against the United States" and for whom "capture is not feasible," and only when operations are "conducted in a manner consistent with applicable law of war principles." In these circumstances, he claimed, high-level executive deliberation, guided by judicial precedent and subject to congressional oversight, is all the process that is due.

Is Holder right? It is hard to say for sure because the due process clause has never before been thought relevant to wartime presidential targeting decisions. The system described above goes far beyond any process given to any target in any war in American history. Awlaki was not given a formal notice and opportunity to defend himself in court, but war does not permit such formal practices. One predicate for the killing was that Awlaki was in hiding — beyond legal process or the reasonable possibility of capture — and plotting and directing attacks on the United States. The U.S. government made clear that if Awlaki "were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner, legal principles with which the United States has traditionally and uniformly complied would prohibit using lethal force or other violence against him in such circumstances." And as Judge Bates noted, while Awlaki’s placement on a targeting list was publicly disclosed in January 2010, Awlaki publicly disclaimed any intention of challenging his status or turning himself in.

It is hard to see how the executive branch could have taken its constitutional responsibilities more seriously while honoring its obligation to keep the nation safe. In light of Judge Bates’s ruling and the analysis on which it rests, and until Congress thinks the president’s approach to targeting requires change, the current system — executive deliberation guided by judicial precedent and subject to congressional oversight — almost certainly satisfies any constitutional requirement. In any event, it belies the claim that the president is not subject to checks and balances.

This conclusion will not assuage critics like Andrew Rosenthal who insist that "the president must receive judicial input before ordering the death of an American citizen." What Rosenthal and other krytocrats have not explained is how the Constitution permits, much less demands, such ex ante judicial input. These critics have not grappled with Judge Bates’s analysis. Nor have they explained how a presidential request for judicial approval to target and kill a terrorist suspect is consistent with the constitutional limitation of judicial power to cases and controversies between parties in court.

It is also unclear whether judges possess the competence to assess and quickly act upon military targets, or whether they would welcome the responsibility for targeting decisions. Perhaps Congress could devise a lawful and effective scheme of judicial or administrative review of the president’s targeting decisions. But it has shown no inclination to do so, and it appears to support the current arrangement.

The final and arguably most fundamental check on the president’s targeted killing program is public disclosure and debate. Public congressional hearings have revealed a lot about the factual and legal basis for the government’s program. At the same time, human rights NGOs, led by Romero’s ACLU, have filed lawsuits and made Freedom of Information Act requests about the practice, and issued many hard-hitting reports. These efforts have pressured the executive branch — in speeches, document disclosures, and leaks — to make public more and more factual and legal details about its targeted killing program over time. The U.S. and global press have also disclosed many details of supposedly secret or covert targeted killing operations against White House wishes. In general, technological innovation in the last decade has made the press and public more adept than ever at scrutinizing the wartime presidency’s secret operations, including its targeting decisions.

These disclosures have fostered a robust public debate about targeting killing in the United States and abroad, and the American public broadly approves of what it sees. According to a recent Washington Post/ABC News poll, 83 percent of respondents (including 77 percent of liberal Democrats) say they approve of the Obama administration’s use of drones against terror suspects overseas, while only 11 percent disapprove. The approval/disapproval numbers drop to 65/26 percent when respondents are told that the targets are American citizens. As the Washington Post‘s Greg Sargent noted, "65 percent is still a very big number." Sargent added that "Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35."

To say that the targeted killing program is embedded in a serious system of checks and balances, and is approved by the American people, is not to say that the government’s public justification of the program has been optimal. It has not. The most glaring problem is that the whole world knows about U.S. targeting practices but the U.S. government cannot talk about them openly — because the operations are either covert (which means they cannot be officially acknowledged) or classified (which means they cannot be discussed publicly), or both.

There are good reasons why the government must be careful in its public discussion of particular targeting practices, even if aspects of the practices are publicly known. One is that the intelligence on which they are based is often fragile, and can evaporate if the means or methods of intelligence are disclosed. Another is that, as Abram Shulsky and Gary Schmitt explain, the government sometimes doesn’t publicly acknowledge their involvement in covert action for diplomatic reasons:

It is less provocative and less disruptive to diplomatic relations not to acknowledge an operation even if the country adversely affected by it is well aware of one’s involvement. The target country, either in the interests of good relations or because it cannot effectively prevent it, may ignore the covert action; it is much harder for it to do so if the government conducting it publicly acknowledges what it is doing.

In short, certain actions are covert because an agreement to deny U.S. involvement was a condition of cooperation from the host country.

When it comes to targeted killing, however, this explanation fails to fully convince. As a recent ACLU legal filing recounts, government officials have effectively acknowledged targeting operations in many contexts, and frequently engage in self-serving leaks about the operations and their legal justifications. Someone in the government, for example, leaked the contents of a Justice Department legal memorandum in support of the targeted killing of a U.S. citizen to the New York Times. Such leaks are wrong because they are probably illegal, because they damage the diplomatic goals of covertness, and because they suggest that the executive branch is trying to have its cake (not talking about the program to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking to get credit for the operation and portray it as lawful). They also make government protestations about discussing the factual and legal basis for targeted killing seem hypocritical.

There are at least two separate issues about what information should be disclosed. The first concerns the legal basis for the targeted killing program. In addition to the New York Times leak, four senior Obama administration officials — Attorney General Holder, Defense Department General Counsel Jeh Johnson, State Department Legal Advisor Harold Koh, and senior counterterrorism advisor John Brennan — have given major speeches outlining this legal basis. These speeches go far beyond the usual public explanations for actions of this sort. But, as Charlie Savage of the New York Times said of Holder’s Northwestern talk, they "fell far short of the level of detail contained in the Office of Legal Counsel memo." After Holder’s speech, the nation has a general explanation of the constitutional and international law bases for the administration’s actions. But the speech also shows that the legal rationale for targeted killing can be discussed without disclosing operations, targets, means of fire, or countries, and without revealing means and methods of intelligence gathering. The Holder speech, in short, weakens the rationale against disclosing more detail and analysis about the legal basis for (and limitations on) targeted killings.

A second disclosure issue concerns the process by which targeting decisions are made and the factual basis for those decisions (including the evidence of ties to al Qaeda, the imminence of the threat posed by the target, the extent of cooperation with other nations, and the reasons capture is not feasible). This is the most legitimate concern of critics and even some supporters of the president’s targeted killing campaign, especially when that campaign involves a U.S. citizen. There is every reason to think that the government was super careful and extra scrupulous in the process preceding the Awlaki killing. But despite the elaborate system of deliberation, scrutiny, and legitimation supporting U.S. targeting practices, the U.S. government can and sometimes does make mistakes about its targets. There is simply no way to wring all potential error from the system and still carry on a war. Even full-blown ex ante judicial review of targeting would not guarantee the elimination of errors.

The government needs a way to credibly convey to the public that its decisions about who is being targeted — especially when the target is a U.S. citizen — are sound. The government did provide this kind of information when there was public uncertainty about whether Awlaki was an operational leader of al Qaeda in the Arabian Peninsula or merely an inspirational figure. In its sentencing memorandum for "underwear bomber" Umar Farouk Abdulmutallab, the government revealed details about Awlaki meeting with Abdulmutallab and providing assistance for the planned attack on a U.S.-bound plane on Christmas Day 2009. This disclosure is credible because it is based on Abdulmutallab’s debriefing statements. And because it is based on those statements, it does not reveal the sensitive intelligence that originally informed the government’s conclusion that Awlaki was an operational leader. Outside this unusual context, however, it is hard for the executive branch to disclose more than it has about the factual basis for its high-value targeting decisions without disclosing and thus destroying its intelligence-gathering techniques or its arrangements with foreign governments. And that, in turn, leaves the government in the unattractive position of asking the public to trust its controversial targeting decisions without any outside confirmation of the facts.

I can think of only two ways to improve the current arrangement. First, the government can and should tell us more about the process by which it reaches its high-value targeting decisions. It should answer a number of questions, such as: How many layers of bureaucracy are involved? How many people, from how many agencies, typically weigh in on such decisions? How long do the deliberations generally take? What, in general, are the intelligence review processes like? How long does a typical congressional briefing on such an issue take? How many members of the relevant congressional committees show up? Does the administration show committee members legal analyses? Do committee staffers, including committee lawyers, participate? How much sharing is there, if any, between the intelligence and armed services committees? Are targets or operations sometimes, frequently, or always revised by these processes? Are they sometimes, or frequently, aborted? The more the government tells us about the eyeballs on the issue and the robustness of the process, the more credible will be its claims about the accuracy of its factual determinations and the soundness of its legal ones. All of this information can be disclosed in some form without endangering critical intelligence.

Second, the government should take advantage of the separation of powers. Military detention at Guantánamo Bay, Cuba has become more legitimate and less controversial in part because another branch of government, the judiciary, has looked at the detentions and agreed with the executive’s assessment. Such judicial review is inappropriate for targeting decisions and, in any event, not available. But a different adversarial branch of government — Congress — can play an analogous role. The congressional intelligence and arms services committees know a lot about the president’s targeting policies, and have gone along with the president’s actions. These committees could (without revealing sensitive information) do more to enhance the president’s credibility by stating publicly — and preferably in a bipartisan fashion — that they have monitored the president’s high-value targeting decisions and find them, and the facts and processes on which they are based, to be sound. Congress does not typically like the responsibility (or the hard work) that such an endorsement would entail. But especially when courts are not available to review the president’s actions, it should step up its public involvement in scrutinizing and vouching for (or criticizing) the president’s targeting decisions. Indeed, the president should insist on it.

While the Obama administration can improve its public explanations for targeted killing, its critics have wildly overstated the legal concerns about the practice. Even exaggerated criticisms, however, can serve a useful role. As I detail in my book, an important lesson of the first decade of indefinite war against al Qaeda and its affiliates is that relentless and sometimes brutal scrutiny and criticism of the presidency from all quarters forces the presidency to engage in self-reflection and public justification that, in the end, strengthen it. The criticisms of targeted killing have produced public debate and limited judicial scrutiny of targeted killings that have enhanced the legitimacy of the practice. They have also encouraged the executive branch to tread very carefully and to provide much more public information and explanation about its operations than usual. There is room for improvement, of course, but we should not be blind to how deeply the Obama administration’s targeting killing practices are embedded in the rule of law.