These Aren’t the Courts We’re Looking For

The N.Y. Times editorial page yesterday joined the growing chorus of folks in D.C. calling for Congress to create a new, executive branch court to review executive targeting decisions.

“Having the executive being the prosecutor, the judge, the jury and the executioner, all in one, is very contrary to the traditions and the laws of this country,” Senator Angus King Jr. of Maine said at the Brennan hearing. “If you’re planning a strike over a matter of days, weeks or months, there is an opportunity to at least go to some outside-of-the-executive-branch body, like the FISA Court, in a confidential and top-secret way, make the case that this American citizen is an enemy combatant.”

Mr. Brennan said the idea was worthy of discussion, adding that the Obama administration had “wrestled with this.” Two other senators, Dianne Feinstein of California, the chairwoman of the Intelligence Committee, and Ron Wyden of Oregon, also expressed interest. Even Robert Gates, a former C.I.A. director who was defense secretary under President George W. Bush and President Obama, said on CNN that such a judicial panel “would give the American people confidence” that a proper case had been made against an American citizen.

The speed with which this idea has gained currency in Washington has, I fear, less to do with its merits and more to do with the intense attractiveness of the notion that there might be a neat procedural solution to a messy substantive problem. Alas, I don’t think it works that way. Here’s my thinking.

There are currently two circumstances the Administration has (more or less) identified in which targeted killing operations may be lawful: (1) when the United States is acting in self-defense (pursuant to the President’s power under Article II of the Constitution) in response to an “imminent” threat; or (2) when the United States is using force as part of an ongoing armed conflict (authorized by Congress and consistent with the international law of armed conflict).

Self-defense first. Under the most common conception of the word “imminent” – and under the interpretation of that standard most plainly accepted under international law – the use of force in self-defense would only be lawful when time was of the essence, i.e. when pre-targeting, quasi- independent review is least likely to be possible. No doubt this is at least in part why the Times makes clear its contemplated court wouldn’t apply in this case. “[T]he executive branch would still be empowered to take emergency actions to prevent an impending attack.”

So for the court to have any role in the self-defense realm, it would have to embrace a much broader concept of self-defense, like the much less well accepted (arguably unique) conception of imminence the white paper, sort of, advances: an imminent threat is posed by any “operational leader” of al Qaeda or an “associated force” who is “personally and continually involved in planning terrorist attacks against the United States.” Is that really what the Times has in mind? As I suggested in an earlier post, the implications of this definition for both the scope of the President’s authority under Article II, and the permissible uses of force by one state against another under international law, are stark. If the President in principle has the inherent power under the Constitution to kill this fairly broad category of actor without prior authorization from Congress, then it is difficult to see why he does not also have the lesser powers to detain, surveil, even interrogate that same class of terrorist equally without advance congressional authorization. As a matter of international law, if the theory is that the anticipatory use of force in self-defense is permissible against any leader of an avowed enemy terrorist organization involved in planning attacks against a state, then we may expect Russia, China, Iran, and the rest of the world to seize claim to the same lawful authority, niceties about which groups are actually “terrorists,” and which aren’t, not necessarily withstanding. The white paper notably didn’t put its “imminence” theory in international law terms. Perhaps because it didn’t think there was adequate support in international law for such a broad concept of imminence. Perhaps because it wasn’t prepared to suggest that idea should count as international law for the rest of the world. So are we prepared to codify that substantive standard of self-defense? If not, then I’m not clear how it makes sense to design a court to provide ex ante authorization for force in that context.

What, then, about the other proffered circumstance for using force – the existence of an armed conflict between the United States and Al Qaeda (and associated forces)? As a matter of domestic legal authorization, the 2001 AUMF gives the President much stronger grounds for using force against members of Al Qaeda. On the other hand, the case is less clear under the international law of armed conflict, the body of international law that all 3 branches of the U.S. government have now recognized informs the meaning of the statutory AUMF. It is not clear that international law sees the United States’ current engagement with Al Qaeda as an “armed conflict” triggering that body of law and the killing it permits. (Even less clear is the idea that there can exist such a thing as a non-international armed conflict with unidentified “associated forces” of unclear organizational affiliation with the named party to the conflict.) Still, for the sake of argument, let’s assume that the ICTY’s Tadic decision provides the relevant definition of what counts as an “armed conflict” under international law; that Tadic stands for the proposition that an armed conflict exists so long as there are hostilities of sufficient intensity and duration, and so long as there is an identifiable non-state actor sufficiently organized that it can actually command its constituent parts; and that the United States’ conflict with (at a minimum) core Al Qaeda satisfies those criteria.

If you accept this definition of armed conflict and its applicability here – that is, if you accept that targeted killing is permissible under this theory at all – then the notion that there should be ex ante court review of targeting decisions is incoherent. It is a central premise of the law of armed conflict that a state will field armed forces sufficiently organized and commanded so that they are themselves capable of conducting their operations in accordance with the laws and customs of war. That is, the law of armed conflict may be understood as imposing an obligation upon state armed forces to develop a set of rules, a command structure, and accompanying systems of training and discipline (including under the Uniform Code of Military Justice), to make sure that targeting operations are done lawfully. To my knowledge, the United States has never before had prior court review of targeting in armed conflict; we have never, to my knowledge, felt the need. What we have had, pursuant to our obligations under Geneva, is a U.S. military force with an elaborate set of regulations, training regimes, disciplinary mechanisms and associated structures – all of which function to check exactly what the Times and others now seem interested in creating a court to check, namely, that we carry out armed conflict targeting operations lawfully.

The U.S. military system for establishing and regulating its targeting operations is of course not perfect. But it is pretty good. And it has years of hard-law rules, and soft-law institutional and operational experience, to help guide it. So why suddenly now are we/Congress/even the former Secretary of Defense worried about the accuracy and legality of armed conflict targeting decisions? One reason may be an abiding uncertainty about whether it really is appropriate to describe our long-term engagement with “Al Qaeda and associated forces” as an “armed conflict” with all the powers war-law brings. But I suspect another reason is because we have, for never really explained reasons, vested the power to engage in targeted killing not just in the institution most legally and practically prepared to exercise it, but also in the civilian authorities at the CIA. Interested in helping to ensure the United States is carrying out its armed conflict targeting operations legally? There is a much easier, much less costly and legally fraught structural way than a new court to do so. And that is to take targeting operations out of the hands of the CIA.

A final note for now. It was a bare ten weeks ago that the departing General Counsel of the Department of Defense gave a speech acknowledging what, if we are in an armed conflict, must be true.

“I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt of launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed. At that point, we must be able to say to ourselves that our efforts should no longer be considered an ‘armed conflict’ against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.”

In principle at least, sometime in the not unimaginable future, the “armed conflict” with Al Qaeda will be over. What will we do with the armed conflict targeting court then? Perhaps it could be designed so that its authority would extend only as long as the “hostilities” authorized by the AUMF, with powers expiring upon the occurrence of an identifiable set of conditions at the end of hostilities. Perhaps such a limit would work. But that is often not the way of bureaucracies – institutions that, once created, can develop a justification and momentum of their own. The Foreign Intelligence Surveillance Act, and the court it created (the FISC), were also passed for the laudable purpose (post-Watergate) of constraining executive power. Today, the FISC oversees a high volume business, one that, as critics have pointed out, supervises more than limits the exercise of warrantless wiretapping for the purpose of gathering foreign intelligence.

I admire the instinct to try to ensure that the exercise of the most fearsome kind of executive power is carried out, as must be all activities of the U.S. government, within the constraints of law. We should keep looking for ways to do that. The drone court isn’t it.