Due Process in Targeting

by Deborah Pearlstein

It has been an eventful news week in the universe of U.S. targeting debates. Amnesty and Human Rights Watch released their reports detailing some of the civilian costs of drone strikes. A bit earlier, UN Special Rapporteur on human rights and countering terrorism, Ben Emmerson, issued an interim report on his findings thus far about targeted killing (though I think the greater significance of the report was his call for more transparency from key governments about the outcomes of the strikes). At risk of saturating the market, as it were, I wanted to flag my own white paper on the subject, just released today as part of the American Constitution Society’s issue brief series.

In keeping with the forum, the paper focuses on what U.S. constitutional due process requires of U.S. targeting procedures. Both the Administration and the Supreme Court have embraced due process – at a minimum for U.S. citizens – in assessing the legality of various U.S. uses of force against Al Qaeda and associates. This paper tries to think concretely about what due process-compliant targeting procedures would look like in this context. Among its conclusions:

(1) [I]t advances constitutional due process to provide clear and public notice of those particular nations or organizations with which the United States considers itself at war; (2) the inclusion of an opposition advocate – a military professional tasked with advancing arguments in opposition to any targeting decision – may reduce the risk of error in deliberate targeting settings; (3) the recently released “U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the U.S. and Areas of Active Hostilities,” announcing that targeters must possess a “near certainty that the terrorist target is present,” brings the burden of proof for deliberate targeting in these settings more in line with constitutional due process than existing military doctrine; (4) where adequate pre-deprivation process is not possible (as in exigent circumstances), a post-deprivation hearing is required.

As the paper tries to make clear, it doesn’t attempt to address the incredibly important questions of when the United States may lawfully engage in lethal targeting; whether international law recognizes a non-international armed conflict between the United States and Al Qaeda and associated groups (as the United States defines it); how ‘imminent’ a threat must be before the U.S. may use lethal force in national self defense, etc. Rather, the paper starts from the assumption that targeted killing can be lawful under some circumstances. The paper is intended to advance our thinking on what process should be followed in targeting decisions when it is.


One Response

  1. “[L]ethal” and “deliberate” targeting can occur many times per hour in the theatre during an international armed conflict or an armed conflict not of an international character.  Obama’s preference for “near certainty” with respect merely to “drone” targeting is not a requirement under the international laws of war or self-defense.  Although the U.S. Constitution should apply with respect to everything the Executive does here or abroad, the question shifts to what does the Constitution require when force is used lawfully under the international laws of war and/or self-defense.  For example, with respect to the 5th Amendment, compliance with relevant international law outside the United States can inform the meaning of what process is “due” and whether there should be some newly claimed American exceptionalism.  The rationales in Reid v. Covert, Ex parte Milligan, U.S. v. Tiede, Murphy v. Ramsey, Boumediene v. Bush, etc. suggest that there should be no distinction because of nationality when persons are targetable under the international laws of war and/or self-defense.

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