by Fiss, Owen
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.”10 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.11 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.14 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.15 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, h
e made a distinction between prospective and retrospective inquiries into the military’s compliance with the standards, and required only a retrospective hearing.16 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.
Recently, the Supreme Court created another category of cases deemed to present political questions. This category consists of those cases in which no constitutional standards are readily ascertainable. It was on this basis that the Court dismissed a suit to formulate the standards to govern political gerrymandering in 2004.17 The original al-Aulaqi suit is of a different matter altogether. Admittedly, the judiciary has thus far declined to give specific content to due process when the government kills, or assassinates, or targets alleged terrorists. But as revealed by the work of other tribunals, including the Israeli Supreme Court, and, ironically, by the attorney general’s Northwestern speech, the promulgation of such standards is well within the reach of the judiciary, though the standards actually promulgated may vary in some particulars from the ones described or proposed in this chapter. In truth, the question before Judge Bates was analogous to the questions before the Court in Hamdi v. Rumsfeld. In Hamdi, the Court had first to decide whether a person detained by the military as an enemy combatant was entitled, as a matter of due process, to an evidentiary hearing on his status and, second, what the rules should be in such a hearing.
In addition to relying on the political question doctrine, Judge Bates dismissed the original al-Aulaqi suit on the ground that the plaintiff—Nasser al-Aulaqi, the father of the alleged target—lacked the standing required by Article III of the Constitution. I have some sympathy with this ruling insofar as Nasser purported to act as the next friend or representative of Anwar. There is no reason to doubt the attachment of Nasser to Anwar, but it is not clear to me that Anwar would have initiated this suit even if he could have done so without putting his life at risk—for example, by sending an electronic message to the lawyers representing Nasser saying that he joined the suit.18 As Judge Bates noted, Anwar al-Aulaqi had repeatedly denounced the United States in the most demonic terms, and he would have undermined his political credibility if he were now to turn to the judiciary of the United States to provide protection for him.
On the other hand, as Judge Bates understood, Nasser was not just representing Anwar. He was also seeking to protect his own interest—that of a father—to prevent Anwar from being killed. The interest of a parent in the life of his child has all the requisite specificity and intensity that could possibly be required of a “case” or “controversy” under Article III. This interest is sufficient to ensure a full, adversary presentation of the facts and the law and to make certain that the judicial power is not wasted on idle or academic controversies. It also has the particularized and differentiated character required by the Supreme Court in recent years to make certain that the Court is acting as a court.19
Admittedly, the government might have denied the existence of a plan to kill Anwar, which would have rendered the alleged threat too speculative or uncertain to justify the issuance of an injunction or a declaratory judgment. However, dismissing the suit on that ground would be quite different than dismissing it for lack of Article III standing. One dismissal is based on the nature of the remedy sought and the other on the constitutional limits of the judiciary. In any event, it should be emphasized that the government deliberately refrained from putting forward such a defense to the original al-Aulaqi suit, and that, as history indicates, such a defense would have been an untruth. As it turns out, the lethal attack on Anwar al-Aulaqi on September 30, 2011, was part of a larger program of targeted killings. Best estimates indicate that between 2002 and 2013 there have been more than four hundred drone strikes, principally in Pakistan and Yemen, and that they have killed at least three thousand people.20
The suit before Judge Bates was most unusual. On the basis of a fear that his son was on a kill list and was soon to be targeted by the government, Nasser al-Aulaqi asked the judge to formulate the legal standards to govern such horrific action. The unusual character of this suit only reflected the unusual nature of the executive’s action. First Bush and now Obama have committed our nation to a war that knows no limits—geographically and perhaps even temporally—and one in which the combatants often appear as ordinary civilians. In so doing, they have adopted policies that confound the traditional division between civilian and military activities, and whose lawfulness cannot be ascertained on the basis of preexisting doctrines and constitutional tests. But the novelty of the challenges presented is not an excuse for judicial passivity. Now that the executive has adjusted the prerogatives of war to a new environment, so must the courts.
NOTES
Chapter 1: In the Shadow of War
This chapter is based on “In the Shadow of War,” University of Miami Law Review 58 (2003): 449–70.
1. UN Charter art. 51.
2. S.C. Res. 1368, UN SCOR, 56th Sess., 4370th mtg., UN Doc. S/RES/1368 (2001).
3. S.C. Res. 678, UN SCOR, 45th Sess., 2963d mtg., UN Doc. S/RES/678 (1990).
4. S.C. Res. 687, UN SCOR, 46th Sess., 2981st mtg., UN Doc. S/RES/687 (1991).
5. S.C. Res. 1441, UN SCOR, 57th Sess., 4644th mtg., UN Doc. S/RES/1441 (2002).
6.
See Neta C. Crawford, “The Best Defense: The Problem with Bush’s Preemptive War Doctrine,” Boston Review, February–March 2003, 20.
7. See Elaine Scarry, “Resolving to Resist,” Boston Review, February–March 2004, 6.
8. See David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New York: The New Press, 2003).
9. Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003).
10. See R. on the Application of Abbasi & Anor. v. Sec’y of State for Foreign & Commonwealth Affairs, (2002) EWCA Civ. 1598, para. 64 (UK Sup. Ct. Judicature [C.A.], November 6, 2002), www.bailii.org/ew/cases/EWCA/Civ/2002/1598.html.
11. Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003).
12. Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002).
13. Hamdi, 316 F.3d at 459.
14. Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
15. “Fact Sheet: Status of Detainees at Guantanamo,” news release, February 7, 2002, 2001-2009.state.gov/p/sca/rls/fs/7910.htm.
16. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002), opinion adhered to on reconsideration sub nom. Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2003).
17. Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2003).
18. Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003).