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Targeted Killing and the Courts

Jameel Jaffer,
Director, Knight First Amendment Institute
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November 30, 2010

Weeks after 9/11, Alan Dershowitz notoriously proposed that judges be empowered to issue warrants authorizing interrogators to use torture against suspected terrorists. His theory was that government interrogators would torture prisoners whether or not we authorized them to, and that, given this "fact," it would be better to regulate torture than to leave it unregulated. He argued that allowing interrogators to apply for "torture warrants" before using methods that would otherwise be illegal would make the practice of torture more "visible" to the public, allow interrogators to use torture without fear of criminal prosecution, and limit the use of torture to state-sanctioned methods. ("A sterilized needle underneath the nail might be one such approved method," Professor Dershowitz suggested, helpfully.)

Professor Dershowitz provoked many people but persuaded few, and the ACLU was among the civil liberties organizations that criticized his proposal. But now Professor Dershowitz sees inconsistency in the ACLU's argument that the Obama administration's "targeted killing" program should be subject to judicial review. How can "killing warrants" be a good idea, he asks, if torture warrants aren't?

Professor Dershowitz quite clearly hasn't read our complaint or legal briefs, because we don't in fact endorse killing warrants (a point I'll return to in a minute), but more basically he misunderstands why we rejected his torture warrant proposal. We didn't reject it because we oppose judicial supervision of torture, though that practice has a sordid history. We rejected it because we oppose torture, period. In our view, torture should be proscribed categorically — and, under existing law, it is. Torture is outlawed by the Geneva Conventions and by the Convention Against Torture, which the United States ratified in 1994. Under domestic law it's a crime punishable by life in prison. The existing law reflects a judgment (which we share) that torture is always inhumane — that it denies the humanity of the prisoner and erodes the humanity of the torturer — and that there are means that even the most laudable ends can never justify.

But while torture is categorically prohibited, the use of lethal force isn't. In wartime, states can permissibly use lethal force against enemy soldiers. Outside the context of armed conflict, government agents — and the rest of us — can permissibly use lethal force in self-defense or defense of others. (Some jurisdictions also allow the death penalty, but of course the legitimacy of that practice is contested, including by the ACLU.) It's true that the circumstances in which the government can permissibly use lethal force without charge or trial are narrow: Except in zones of armed conflict, lethal force can be used only as a last resort, and only to address threats that are imminent. But the point is that the government's use of lethal force — unlike its use of torture — is not always unlawful. Professor Dershowitz acknowledges this distinction but misses its import.

Because the government is not categorically prohibited from using lethal force, it makes sense to ask what standards will control the use of lethal force, and who will decide whether the standards are satisfied in any particular instance. The central claim of our ongoing lawsuit is that the courts have a role to play in articulating the standards under which lethal force is used, and in ensuring that the government actually complies with those standards. We reject the Obama administration's argument that the president's authority to order the targeted killing of suspected terrorists — including American citizens — is entirely unreviewable.

To say that the courts have a role to play, though, is not to say that judges should be empowered to issue "killing warrants," and while others have proposed that judges oversee the government's real-time targeting decisions, we haven't. The reason we haven't is that, except in zones of armed conflict, the government's authority to use lethal force is limited to circumstances in which a prior warrant requirement would be unworkable — circumstances in which there isn't time for a court to weigh the evidence. A warrant requirement might make sense if the government had sweeping authority to carry out the targeted killing of anyone, anywhere, who might at some point in the future present a threat to the country. But it doesn't have this kind of authority, and it shouldn't. (Indeed, if the government had that authority, it could dispense with criminal trials altogether by summarily executing criminal suspects instead.)

Professor Dershowitz is right about one thing: The courts should play a role in overseeing the targeted killing program. They should do this by articulating the legal standards under which the government can permissibly use lethal force against individuals who haven't been charged with crimes, and by reviewing, after lethal force has been used, whether the government has complied with the legal standards. (American courts are already familiar with this framework, because it's the framework they already use whenever an individual alleges that government agents used "excessive force.") Empowering courts to issue killing warrants is neither necessary nor advisable — which is why we haven't proposed it.

(Cross-posted to Huffington Post and Daily Kos.)

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