A War Like No Other (37 page)

Procedures for Assessing Compliance

Although, as I maintain, the essential function of the judiciary in the al-Aulaqi case was to formulate and announce the constitutional principles that are to govern the executive’s targeting policy, a controversy is likely to erupt over the application of those principles even after they are announced. As a result, a question will arise as to the role of the judiciary in policing the executive’s judgment in the implementation of those principles, most notably in the determination that the individual targeted is not a civilian but a terrorist who could properly be treated as an enemy combatant.

In the closing passages of his Northwestern speech, Holder acknowledged the need for “robust oversight” of the executive in the implementation of its targeting policy. It turns out, however, that the oversight he contemplated was to be provided by Congress, not the judiciary, and there was nothing especially robust about it. He was referring to a scheme whereby “the Executive Branch regularly informs the appropriate members of Congress about [its] counterterrorism activities.” Under this scheme, we would have one political actor (the attorney general) reporting to another (Congress), with no requirement that the institution performing the oversight publicly announce its decision or justify that decision on the basis of principle. In that
respect, the oversight system Holder contemplated compounds the political character of the standards he announced.

Following the Northwestern speech, the president issued guidelines to ensure that the policies Holder announced were, in fact, followed. Internal review processes were established to monitor compliance. They were to be implemented by officers in the executive branch. An arrangement was also made to notify the appropriate congressional committees—not just individual members of Congress—after a drone strike had occurred. Notifying the committee, as opposed to select members of Congress, might have the effect of making that strike part of the official business of Congress and thus subject to further debate and consideration. None of these measures, however, constitutes an adequate substitute for the constraint that might be brought to bear on the executive by a court of law reviewing the implementation of the targeted-killing program.

Obama implicitly recognized this lacuna when, in his speech at the National Defense University in May 2013, he toyed with the idea—which went nowhere—of “bringing a third branch of government into the process.”
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In that context, he mentioned the possibility of establishing a “special court” that would review plans to target suspected terrorists. Yet all the features that would make such a tribunal “special”—using a cadre of hand-picked judges, ensuring that the court operated in secret, and having the court act after it heard from only one side (the government’s)—would deprive that tribunal from speaking with the authority that rightly belongs to the judiciary. A court needs to review the executive’s implementation of the standards governing targeted killing, but it should not be a “special court.”

The need for judicial oversight in reviewing executive determinations generated by the War on Terror was recognized by the Supreme Court in its 2004 decision in
Hamdi v. Rumsfeld.
The Court held that the executive’s determination that an
individual captured in Afghanistan and imprisoned in a naval brig in the United States as an enemy combatant was entitled, as a matter of due process, to an evidentiary hearing on his claim that he had not taken up arms against the United States. Justice Clarence Thomas deferred to the executive’s judgment and maintained that no review of the executive’s determination as to the status of the individual would be appropriate. However, all the other justices took a contrary view and refused to make the decision of the executive the last word. Justice Antonin Scalia, joined by Justice John Paul Stevens, required a criminal trial. They insisted that the prisoner could not be denied his constitutional right to freedom without first having been found guilty by a federal court for having committed a crime against the United States.

Justice Sandra Day O’Connor, for her part, expressed the view that although due process required that an evidentiary hearing be held before an impartial decision maker to assess the prisoner’s claim of freedom, that hearing could be held before a properly constituted military tribunal—an idea that might seem to lend credence to Obama’s call for a “special court.” We should not, however, assume that O’Connor spoke for a majority on this issue. Her opinion was styled as the opinion of the Court, but it is not clear that it had the support of five justices. Justice David Souter, in an opinion joined by Justice Ruth Bader Ginsburg, indicated his willingness to join O’Connor’s opinion, but only with the understanding that a military tribunal was no substitute for the federal habeas court for purposes of holding the evidentiary hearing to which the prisoner was entitled. Moreover, two of the justices who joined O’Connor’s opinion without reservation—Justices Anthony Kennedy and Stephen Breyer—subsequently revealed their disagreement with O’Connor’s view about the acceptability of using military tribunals to determine a prisoner’s status when, in 2008, the Court handed down its decision
in
Boumediene v. Bush.
In an opinion written by Kennedy and endorsed by Breyer,
Boumediene
held that those individuals imprisoned in Guantánamo as enemy combatants were entitled to have a federal court, acting on a writ of habeas corpus, to hear their claim that they had not raised arms against the United States.
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In the end, it appears that only Justice O’Connor and Chief Justice William Rehnquist endorsed the idea put forth in
Hamdi
of substituting military tribunals for the federal habeas court. All the others who signed on to O’Connor’s opinion understood the importance of having a federal habeas court assess the prisoner’s claim to personal freedom and believed that this was the essence of due process.

Of course, targeted killing does not involve imprisonment, and thus the writ of habeas corpus does not come into play. Still, the denial of freedom—long the province of habeas corpus—in a targeted killing is more complete and devastating than even prolonged imprisonment. More procedure should be required, not less, when the taking of a life hangs in the balance. It would be ironic to have the judiciary review the legality of the executive’s decision to imprison an individual captured in a theater of armed conflict, as Yaser Hamdi was, but not its decision to kill an individual off the battlefield, as was true of Anwar al-Aulaqi. Accordingly, the judiciary must be allowed to review the executive’s determination that the conditions that would permit the individual to be targeted were indeed fulfilled. Justice Scalia, presumably followed by Justice Stevens, conditioned the right of an alleged enemy combatant being held by the United States to demand a full-blown criminal trial in federal court on the fact that the prisoner was an American citizen. The citizenship of the prisoner was emphasized in O’Connor’s opinion in
Hamdi,
but she did not explicitly state that the procedures outlined in her decision for reviewing an executive determination would be unavailable to noncitizens, nor should they be. The need for the
judiciary to review a decision of the executive arises whenever the executive deprives an individual—any individual—of his liberty or his life.
¹²

In determining the precise role of the judiciary in reviewing the determination of the executive to target an alleged terrorist, a distinction should be drawn between retrospective and prospective inquiries. A retrospective inquiry might arise after an individual has been killed and some relatives or friends maintain that the killing violated the Constitution because, for example, the target was a civilian, not a terrorist, or that he could have been captured, or that civilian bystanders were killed, or that the harm caused by the targeting was grossly disproportionate to the military gain. The opportunity for such a retrospective inquiry into the legality of targeting Anwar al-Aulaqi arose when his father, Nasser al-Aulaqi, brought a second lawsuit, this one in 2012, after Anwar was killed. In the second suit, Nasser sought damages for the wrongful killing of Anwar and also for the killing of Abdulrahman al-Aulaqi, Anwar’s sixteen-year-old son and Nasser’s grandson. Abdulrahman was killed in a separate drone attack approximately two weeks after the one that killed his father, Anwar. Abdulrahman was not the target of the attack, only collateral damage, which only strengthened the claim that he was deprived of his life without due process of law.

Claims for damages such as Nasser’s must be adjudicated by a federal court in the exercise of its federal question jurisdiction and the applicable rules, which, under
Bivens v. Six Unknown Named Agents,
¹³
authorize damages for a violation of constitutional rights. In such a suit, the executive is likely to defend on the ground that the right was not clearly established at the time of the contested action.
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In a number of lawsuits seeking damages for torture, the executive successfully sought dismissal of the suit on the ground that the litigation risked disclosure
of state secrets or that it presented special factors requiring an exception to the
Bivens
rule.
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The executive is likely to invoke these doctrines as a defense to a suit seeking damages for the consequences of its targeted-killing policy. Admittedly, in such a proceeding, the facts and circumstances of the killings must be laid bare, and for that reason may be inconvenient for the executive. Yet it must be remembered that such a proceeding is an essential means of determining the legality of the executive’s action and thus for holding the executive accountable to the law.

The burden on the executive is greatly increased if the challenge to its authority to target an alleged terrorist can be brought prospectively—as in the initial suit brought by Nasser—before the killing takes place, and on the basis of a claim or fear that the person in question is on a “kill list.” In his Northwestern speech, Attorney General Holder focused his attention on such a prospective suit and complained of the risk that such a suit would create. It would require, according to Holder, “the President to delay action until some theoretical stage of planning when the precise time, place, and manner of attack [would] become clear.” Holder protested that “such a requirement would create an unacceptably high risk that our efforts would fail and that Americans would be killed.”

Arguably, Aharon Barak was moved by such pragmatic considerations in writing for the Israeli Supreme Court. Although he announced the standards for the targeted killing of terrorists and was warmly celebrated around the world for doing so, he made a distinction between prospective and retrospective inquiries into the military’s compliance with the standards, and required only a retrospective hearing.
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We may want to take our bearings from his decision and relieve the executive from obtaining, to use the attorney general’s characterization, “prior approval” or “permission” from a federal court for the targeted
killing of a suspected terrorist. Even so, this would not relieve the court of the burden—bravely discharged by Barak—of articulating the constitutional standards for targeting alleged terrorists or for requiring that such targeting be subject to a retrospective inquiry. The announcement of standards would tell the executive—Holder and his successors—what the Constitution requires, and that might be a sufficient guide to the executive in formulating and implementing its targeting policy. The executive professed obedience to the law and has political reasons to be true to its word. Moreover, the prospect of a retroactive inquiry into the executive’s action will itself provide further incentives for the executive to respect the law and to keep its action within the bounds of the law.

The Court’s Decision

Although the original al-Aulaqi suit was of the prospective variety, Judge Bates did not draw a distinction between retrospective and prospective suits and the unique practical burdens of the latter. He dismissed the suit in its entirety and denied even the possibility of ever laying down the constitutional standards for the targeted killing of alleged terrorists. In part, this determination was based on the political question doctrine, although we can readily see the error in his reliance on that doctrine. The judge was not being asked to second-guess matters that lay properly within the province of the political branches. He could assume that the pragmatic judgments of the executive are correct and then proceed to establish the normative framework for its action—to define the constitutional standards within which the executive can engage in targeted killings of suspected terrorists. Although these standards may constrain the executive and deny the executive the authority to engage in operations that it deems would have a tangible national security benefit, the standards
announced will do so only on the basis of the constitutional values that the judiciary is entrusted to interpret and protect.

Bates’s use of the political question doctrine to dismiss Nasser’s suit was not forced by Supreme Court case law. Historically, the Supreme Court confined the political question doctrine to those cases where there is some specific constitutional provision that reserves the question presented to the political branches. The suit to set the standards for targeted killings of suspected terrorists does not fall within the scope of that rule. The Constitution may reserve to Congress the power to declare war, but as the 2004 decision in
Hamdi v. Rumsfeld
and the 2008 decision in
Boumediene v. Bush
make abundantly clear, the war against al-Qaeda—an ongoing military campaign against an international terrorist organization—is subject to constitutional constraints, and the judiciary has the power to construe and implement those constraints.