an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On the Presidential Assassination of American Citizens
It’s important to distinguish between two issues raised by the drone attack that killed Anwar Al Awlaki – the American citizen/ Moslem cleric who gained notoriety by his jihadist sermonizing over the internet. So far, the focus has been on the president’s legal authority to order drone strikes in Yemen and other places far removed from the battlefields of Afghanistan/Pakistan and Iraq. This is the subject of an OLC memo, which President Obama unaccountably refuses to make public (in a suitably redacted form). Instead, the Administration is trying to deflect the pressure for publication by leaking a summary to Charlie Savage who has outlined the memo in a front page story on Sunday’s Times.
From Savage’s account, it seems that the OLC is taking a very extreme position, using a latitudinarian construction of both international law and Congress’ 2001 Resolution Authorizing the Use of Force to defend the virtually unlimited use of drones against “terrorists” in failed states like Yemen or Somalia. But of course, it’s impossible to assess OLC’s position fairly until the Administration actually publishes the memo itself. It is simply unacceptable to force Americans to determine when they can be assassinated by reading rumors about the government’s legal reasoning in the New York Times. But the campaign for publication of the OLC memo should not deflect attention from a second issue: While OLC attempts a general justification for drone attacks, it didn’t try to assess the particular process which found that Awlaki posed an imminent threat to the homeland. Here too, administration leaks have been have been proceeding at a furious pace.
The process they describe provoked me to post an essay on the Foreign Policy site:
According to Reuters, American citizens like Awlaki aren't targeted directly by the president or politically responsible officials. The job is delegated to midlevel operatives in the White House's National Security Council (NSC), who then send their recommendations on to a panel of NSC "principals" comprising a shifting group of cabinet officers and intelligence chiefs, depending on the particular mission involved. We do not know how much information the "principals" receive or how much time they spend weighing the evidence. But such a transient body isn't a suitable forum for making life-and-death decisions about Americans. At the very least, the fate of fellow citizens should be determined by a seasoned group of decision-makers whose judgments are honed by deliberation over time.
This is all the more true because the president himself plays a passive role. The NSC informs him of its targets, and he is free to reject them, but he is protected from making the final decision -- perhaps to provide him with deniability in case the Yemenis or others get testy.
Worse yet, this procedure lacks all legal foundation. No statute or regulation has authorized its extraordinarily casual approach to matters of life and death – indeed, the very existence of the NSC panels has not even been publicly acknowledged.
Once again, it would be a mistake to put too much credence in leaks; but the very notion that American citizens could be subject to secret, arbitrary, and lawless procedures violates the very essence of due process. My essay argues that no further targeted assassinations are constitutional at least until Congress specifies by statute the procedures to be used to determine whether American citizens operating abroad in failed states do indeed pose an “imminent” terrorist threat to the homeland. Posted
by Guest Blogger [link]