Judicial Review of Potentially Lethal Targeting Decisions — Through the Lens of the bin Laden Operation

by John C. Dehn

Last week I posted about the challenges to and importance of judicial review of war measures against U.S. citizens.  This post will use the bin Laden killing to explore the issue in the context of targeting — hopefully in manner accessible to the average reader.  After reviewing issues likely preventing prior judicial adjudication or review of a potentially lethal (“kill or capture”) targeting order, it briefly explains why after-the-fact judicial review of such orders is important to preserving the rule of law.

Because ours is a limited federal government, our federal courts may not hear any and every lawsuit.  A case must be within the jurisdiction of a federal court, meaning within its legal power to hear and decide.  Jurisdiction has two major components: the subject matter of and the parties to a lawsuit.   For example, the case brought on behalf of U.S. citizen Anwar al-Aulaqi raised claims arising under our Constitution and other federal laws.  Therefore, it involved a “federal question” typically within the subject matter jurisdiction of the federal courts.   Additionally, the plaintiff invoked and submitted to the court’s authority, and the defendants were federal government officials acting in their official capacities.  Therefore, the court also had jurisdiction over the parties to the suit.

Cases filed in our federal courts must also be “justciable,” which basically asks whether they are appropriate for judicial intervention.   Importantly, a plaintiff must have “standing” to bring a suit.  To have standing, a plaintiff is must have suffered or be sufficiently likely to suffer some unique and legally cognizable injury (or be able to raise such a claim on behalf of an individual).  A claim should also be “ripe.”  This requires that events be sufficiently developed to manifest and clarify the injury to be addressed.  Cases must also not be “moot,” which means that the underlying claim or injury must remain unresolved at the time of the trial and judgment, giving the judgment appropriate legal meaning and effect.  Many believe these justiciability doctrines to be based in constitutional provisions extending federal judicial power only to “cases” and “controversies.”

The “political question doctrine” is another of these justiciability doctrines.  Based in the Constitution’s separation of powers, the political question doctrine attempts to identify those matters properly left to the discretion of the elected branches. Baker v. Carr, 369 U.S. 186, 217 (1962)(“It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers.”)  The Supreme Court has identified six circumstances indicating that a case might involve a political question.  These include: “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id.  Judges have broad discretion to apply these rather malleable categories.

Judge Bates dismissed al-Aulaqi suit on two grounds.   First, he found that the person bringing the lawsuit, al-Aulaqi’s father, lacked standing to advance the claims he made on his son’s behalf.  More problematic, though, was Judge Bates’s determination that the claims involved a non-justiciable political question.  For reasons I explained in an earlier post, the Constitution only arguably vests the decision to resort to war in the elected branches.  Nevertheless, judicial review of the use of specific war measures against individuals or property has been quite common in U.S. history.

The main obstacle to judicial review of an unexecuted, potentially lethal targeting order is not that the president or elected branches have unreviewable discretion to identify and engage threats to the United States.  Because extrajudicial killing of combatants in armed conflict is not presumptively unlawful or unconstitutional, the context in which any such killing occurs determines its legality. Until the order is carried out, there is simply no way to know whether, or the circumstances in which, deadly force will be used.  In other words, the case is likely not “ripe” for judicial review because it is unclear whether or how any public or private right will be improperly invaded.

The circumstances surrounding bin Laden’s death amplify this point.  Osama bin Laden was “wanted dead or alive” for over a decade.  It was impossible to know in advance when or how his death would ultimately occur.  At least one commentator claimed that deadly force was properly employed in defense of government agents conducting a law enforcement-like mission.  Others have argued that it was a permissible act of war (or national self-defense) regardless of whether bin Laden presented an imminent threat of death or grave harm to any specific individual at the time he was killed (provided that he did not clearly manifest an intent to surrender).  Both legal justifications potentially apply depending upon what actually happened in the Abbottabad safe house.

Some might believe that judicial review of an executed targeting order that ultimately results in death is futile.   Irreversible physical and legal harms have already occurred.  But it is an unfortunate reality that lawsuits typically respond to injury to compensate or otherwise redress legal harms already suffered.  But these lawsuits remain important not only because they compensate for harm as best the law can, but also because they clarify the law, thereby potentially preventing or curtailing future harm.  For example, it was not entirely clear whether the Constitution prohibited a state from allowing its law enforcement officers to shoot fleeing felons on sight until the Supreme Court’s decision in Tennessee v. Garner, 417 U.S. 1 (1985).  The decision clarified that the Constitution requires an objectively reasonable belief that a fleeing felon poses a threat of harm to an officer or others before the officer may use lethal force.  States and officials now better understand the legal standard governing their conduct and can adapt their conduct and procedures accordingly.  In this way, after-the-fact judicial review is preferable to no review at all.  Those who demand that the law prevent all harm simply ask too much of it.

But no legal doctrine (political question, state secrets evidentiary privilege, etc.), particularly not one based in the separation of powers, should prevent a citizen or her estate (in a proper case) from questioning whether her government killed, wounded or detained her in a manner consistent with the Constitution.  Although I have argued that judicial review of the use of force against a citizen in the context of armed conflict must necessarily be somewhat deferential, as it is in the domestic law enforcement context, it should still occur.  The powers of the federal government were separated to prevent abuses of power.  Applying the political question doctrine in a way that vests the discretion to use military powers against citizens exclusively in the elected branches essentially recreates the situation the Colonists and Framers sought to remedy.


3 Responses

  1. Hear! hear!  Great post!  Would expand beyond political question to state secrets privilege and the problem of “judicial activism” (this time in favor of the government) that allows the government official misconduct even within the scope of their employment to not be addressed.

    I would note that an interesting corollary with this would be state vs. federal law and the role of the Federal Officers Removal Act.  For example, state prosecution of the federal agent who killed a person at Ruby Ridge.  The shape of these doctrines and privileges may be different where the states are standing there on behalf of their citizens and in a regulatory or a criminal law mode – as opposed to when it is an ordinary citizen or resident.

    For example, if someone wanted to assert the state secrets doctrine in a case between the Federal Government and a state (say New Hampshire) – whose state is the state for purposes of the state secrets doctrine as between the Federal government who is asserted to be trying to hide unlawful behavior that may be criminal and the state trying to prosecute or regulate it within its Constitutional role?  There may be interesting federalism dynamics to be kept in mind also here.

    If the feds were unwilling to prosecute but a relevant state law could reach the behavior would be a classic case.  One of the interested points being the autonomy of the state prosecutor function vis a vis the federal prosecutor function even if subject to the control of the Federal Courts.


  2. Response…
    Yes, yes, and regarding the many cases and opinions affirming judicial power to review Executive decisions during war, see, e.g., 14 U.C. Davis J. Int’l L. & Pol’y 205, 240-45 (2008); 2007 Utah L. Rev. 345, 388-99 (2007).

  3. I would just like to refer you all to Richard Murphy’s and John Radsan’s research paper entitled “Due Process and Targeted Killing of Terrorists” which provides additional analysis of this crucial topic, namely by examining the model suggested in both the Hamdi and Boumediene cases.

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