Noah Feldman on Targeted Killings and Due Process

You might want to take a look at Noah Feldman’s op-ed at Bloomberg on the Obama Administration’s white paper on targeted killings. If Dr. Feldman’s reading is correct, the administration’s views on the subject have important intrinsic contradictions. Unlike some of the supporters of the administration’s actions who believe that in war all rules are discarded, the administration apparently accepts the requirement for due process. They just won’t say what the requirements of due process are:

Astonishingly, the white paper follows its summary of these decisions with the bald assertion that a citizen outside U.S. territory can be killed if a high-level official determines that he poses an imminent threat, it would be unfeasible to capture him and the laws of war would otherwise permit the killing.

The non sequitur is breathtaking. Awlaki wouldn’t receive notice, the opportunity to be heard or a hearing before a decision maker. In other words, he would receive none of the components of traditional due process — not even one. How the absence of due process could be magically transformed into its satisfaction is never stated or explained. All we get is the assertion that a target’s interest in life must be “balanced against” the government’s interest in protecting other Americans. On this theory, no due process would be due to those accused of murder, because their lives would have to be balanced against the government’s interest in protecting their potential victims.

Feldman goes on to catalogue the Obama Administration’s denial of due process in the case of Anwar al-Awlaki.

Update
More on the same subject and in a similar vein from Small Wars Journal. Hat tip: frequent commenter Andy.

6 comments… add one

  • PD Shaw

    I think Feldman confuses the parts of the paper which support the use of war powers, with the parts of the paper detailing the discretion the administration chooses to follow in using those powers. The reference to the Supreme Court’s decision that minimal, to non-existent due process rights are available to U.S. citizens who are brought within the reach of the U.S. courts (Gitmo) clearly means no U.S. citizens have such rights in Yemen. Access to courts is long-standing aspect of imminence.

    IMHO the creation of a FISA-like court to oversee targeting killing will go along way towards legitimizing and expanding such killings. The potential process at issue is not whether the killings are just or make strategic sense, but whether the target has joined with the enemy.

  • Andy

    PD Shaw,

    I’d be interested in your opinion of this:
    http://smallwarsjournal.com/blog/justice-department-memo-evidences-confusion

  • If, as is claimed in the article to which you linked, the targeted killings are being done pursuant to our being at war, having those activities performed by civilians or irregulars is opening a real can of worms.

  • Andy

    Dave,

    Yeah, that’s the thing. There’s too much mixing of war, law enforcement and covert action for the sake of expediency.

  • PD Shaw

    Andy, I’m just a dabbler, but the SWJ seems right to me. In particular, I think its right to point out that the most sophisticated disagreements with the administration originate form the position that the U.S. is not at war with al-Qaeda. I think critics (like Heller at Opinio Juris) concede that if we are at war with al-Qaeda, then the citizenship of its members are not an issue under the law of war. That we are war with al-Qaeda is not disputed by any domestic institutions.

    I think SWJ misses that the Administration obviously felt targeting a U.S. citizen posed domestic political concerns, and so the white paper shouldn’t be read as a legal document, with binding rules, but a claim to the types of considerations animate the Administration’s judgment. Anyway, I don’t think we should be comfortable with it, nor should we create institutions to make us comfortable with it.

  • PD Shaw

    A NAZI Germany era joke: Hordes of rabbits begin swarming towards the Belgium border, seeking political asylum.

    “You have to help us, giraffes have been labelled Enemies of the State!”

    “But you’re not giraffes!”

    “Yes, but try convincing the Gestapo of that.”

    The Internationalist resemble the confused Belgians, comforted by their certainty that rabbits are not giraffes (nor can there be war with a non-state actor). Do they call Berlin to inform them of their error? “Vielen dank, we will add rabbits to our list; your concern for proper categories is much appreciated.”

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