Targeted Killings: A Legal History

Unless you are an unquestioning hawk in the war on terror, “scary” doesn’t begin to describe the breathtaking expansion of executive authority called for in the Justice Department’s “white paper” on “targeted killing,” published this month by NBC News. In 16 pages of dense single-spaced legal prose, the paper lays out a justification under both international and domestic law for the president or other unspecified “informed, high-level” administration officials to order the execution of U.S. citizens abroad who are deemed to be senior operational leaders of al-Qaida or forces “associated” with the terrorist network.

When all the legalese is stripped away, the paper offers a stark and simple bottom line: Because America is at war, all that’s needed for a kill order to proceed is evidence that a targeted individual is “continually involved in planning terrorist attacks against the United States.” An attack need not be imminent or immediate, and the supporting evidence need never be made public because a targeted kill order, according to the paper, is beyond the scope of judicial review, either pre- or post-execution.

Since the white paper’s release, constitutional scholars and political commentators have picked apart the memo’s legal reasoning, decrying the administration’s position as a wholesale violation of due process, and an audacious power grab that, if allowed to stand, will insulate Obama and future presidents from the accountability and openness that are the bedrocks of democracy.

But as sweeping and disturbing as the white paper may be, it is not without historical precedent. Minus the drone technology involved, we as a nation have been down this road before, although for the most part covertly. Indeed, according to Harvard Law School professors Gabriella Blum and Philip Heymann, targeted killings, or “assassinations” as they were more bluntly called before the newspeak of post-9/11 politics, have long been regarded as a basic element of foreign relations that largely remained in the dark, unspoken of but widely practiced in response to perceived threats to national security.

In 1975, the Senate select committee chaired by the late Frank Church, D-Neb., famously broke through the secrecy, reporting that it had uncovered evidence linking the CIA to at least eight assassination plots, involving such world figures as Fidel Castro, the corrupt South Vietnamese leader Ngo Dinh Diem and Chilean Gen. Rene Schneider, who was killed in 1970 after he refused to block the election of Salvador Allende. And while secrecy remained the norm thereafter, a handful of subsequent operations that were too big to go unnoticed entered the public domain, including the 1986 airstrike ordered by President Reagan on Moammar Gadhafi’s residence, and the 1998 bombing of Osama bin Laden’s Afghanistan headquarters, undertaken by the Clinton administration.

After the 9/11 attacks, the number of kill orders, now directed against al-Qaida and its allies, increased exponentially, expanding beyond the Afghan battlefields under the authority of the Authorization for Use of Military Force Act, one of the principal legal sources cited in the white paper on the current targeted kill program. Since 2004, drone strikes in Pakistan alone have resulted in as many as 3,468 deaths. Three U.S. citizens — the radical Muslim cleric Anwar al-Awlaki and his son, along with Samir Khan, the editor of al-Qaida’s English-language Web magazine Inspire, have been killed, all in Yemen.

Seen in an even wider historical context, the Justice Department’s white paper also can be understood as an outgrowth of America’s long and often lamentable history of combating purported domestic threats to national security. As Yeshiva University history professor Ellen Schrecker — considered by many the foremost authority on McCarthyism — reminds us, political repression at home is “as American as apple pie.”

Although each period of repression, from the subjugation of the Native American population to the red scare of the mid-20th century and the Islamophobia afoot today, has its unique character, according to Schrecker, they share at least two core parallel features. First, the enemy is dehumanized and demonized by politicians and the press as an alien outside force bent on destroying the country, its citizens and its values. Second, there is a precipitating crisis, usually in the form of a hot or cold war, that drives the demonization and serves to validate the curbs on civil liberties that repression brings.

The red scare is particularly instructive, both to our understanding the present crisis and for pointing a way out of it. Then, as now, the U.S. found itself in the throes of a protracted struggle against a foreign enemy — the Soviet Union and later, China — that in the rhetoric of the day threatened the American way of life. Then, as now, those in power responded with increased surveillance of suspected subversives, the compilation of security indexes and enemy lists, arrests, imprisonment, and in the case of Julius and Ethel Rosenberg, execution.

Then, as now, there also was a determined effort to limit the state’s overreach, both through political organizing and the courts. As a young lawyer, I worked as an associate in a Los Angeles law firm that long before my arrival had helped litigate some of the landmark lawsuits that eventually made their way to the Supreme Court and changed the face of constitutional law, clarifying that mere advocacy of political ideas could not be criminalized and that only speech that reasonably and intentionally threatens actual imminent harm may be proscribed.

Following in that tradition, the ACLU and the New York-based Center for Constitutional Rights have filed a federal lawsuit (Al-Aulaqi v. Panetta) in Washington, D.C., to have the targeted kill program declared unlawful.

Whether the ACLU’s case succeeds, of course, remains uncertain, as is true of all lawsuits. But regardless of the outcome of any single case, one truth with any luck and enough perseverance will ultimately prevail: In exercising its legitimate right of self-defense, our government will remain bound by the Constitution, and its acts, for better or worse, will remain subject to thorough judicial review.

In his State of the Union address, President Obama promised “to engage with Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.” These are bold words and, if believed, reassuring. Judging from the Justice Department’s white paper, however, the president has an enormous amount of rethinking to do before we can take his promise at face value.