I promised to blog again about Eric Holder’s speech on targeted killings, and in particular the distinction that he drew between legal process and due process. Holder concluded that American citizens targeted by the U.S. drone program have a constitutional right to due process, but that due process need not take the form of legal process.
In other words, citizen-targets do not have a constitutional right to contest their inclusion on the targeting list before an Article III judge, or even some other judicial process.
So what due process remains after one takes legal process off the table? For Holder, it means an executive branch-only review of military targeting that ensures that American citizens are only targeted under strict criteria, including that the citizen poses an imminent threat to the United States. As I have already argued, Holder’s understanding of the concept of imminence is strained, and more closely tracks the concept of “immediate necessity.” The Administration believes that a drone attack is justified if it represents the last best chance to stop a terrorist, even if the terrorist attack is well into the future.
But back to the issue of due process. If the due process is not judicial, i.e. it is executive-only, does that really count as due process?
Part of the problem here is that although the Supreme Court has pronounced on what due process requires in all sorts of situations, there are precious few precedents regarding due process in military matters.
One of the few is Hamdi, which held that an American-citizen belligerent captured on the battlefield has a due process right to contest his decision before a neutral decision-maker. Although that didn’t necessarily entail an Article III court, it did require a legal process, i.e. some form of tribunal that offered an adversarial proceeding. In contrast, the type of review described by Holder is not adversarial at all; it’s essentially a form of internal executive deliberation without any participation from the citizen-target.
Of course, Hamdi is not a targeting case, which is precisely why it is difficult to analogize its holding from the detention context to the targeting context. Due process regarding detention is necessarily ex post, while due process regarding targeting, if it is to be meaningful at all, must be ex ante. (It’s meaningless to contest a targeting decision after the target is dead.) And that basically destroys the entire concept of targeting as it is understood by military commanders. So we are left with a complete lack of domestic judicial interpretation about what due process requires in the targeting context.
The other major problem with analogizing from Hamdi is that the Supreme Court’s discussion of the constitutional right was heavily informed by the due process required by the international law of armed conflict, in particular the right under the Geneva Convention to contest one’s status as an enemy belligerent. That’s a well-codified principle under international law, so the Supreme Court’s constitutional analysis closely tracked what international law already says about the issue. In that sense, it’s unclear how much – if any – of Hamdi’s substance actually hinges on citizenship, since the right as it exists under the international law of armed conflict applies to citizens and non-citizens alike. It’s a right that’s afforded to the enemy pure and simple.
But there is no analogous norm regarding due process and targeting under the international law of armed conflict. So the constitutional analysis can’t simply curl back on the international law analysis in the same way that it did in Hamdi. That option isn’t available.
Of course, some scholars will object that the due process right under international law stems from international human rights law, not the law of armed conflict, and that the targeted killing of al-Awlaki violated his human rights. I have written before about the co-applicability of international human rights law and the law of armed conflict to the same situation, and I won’t rehash my arguments here. But suffice it to say that, even if this argument has merit, then again citizenship doesn’t really matter. If the constitutional law analysis is going to curl back on a due process norm that stems from international human rights law, then it too applies universally and does not really depend on Awlaki’s status as an American citizen.
One final note. Although the U.S. Supreme Court was comfortable relying on the international law of armed conflict to flush out the constitutional analysis in Hamdi, I wonder if today’s court would be as willing to rely on international human rights law to flush out the constitutional analysis regarding targeting. I suspect not.