interesting solution to the drone/targeted killing issue

I’ve been down for a while, partly due to classwork and now, more recently, to a broken wrist. I missed out on talking about the release of the White House’s standards for targeted killing, which I think more-or-less everyone already knew the rough outlines of, though it’s nice to have it in black-and-white. But plenty of people have been discussing that (TL;DR: theoretically targeted killing are limited to Al-Qaeda members, posing imminent threats, who are beyond our reach — but practically the standards for imminence, unreachability, and even Al-Qaeda membership are so vague that the standard is no standard at all), so instead let me flag an interesting proposal from Steve Vladeck of the Lawfare blog, by way of Garrett Epps in The Atlantic. Epps summarizes Vladeck’s idea as follows:

He proposes a statute in which Congress assigns jurisdiction to a specific judicial district, probably the District Court for the District of Columbia. Congress in the statute would strip the executive of such defenses as “state secrets” and “political question.” Survivors of someone killed in a drone attack could bring a wrongful-death suit. The secret evidence would be reviewed by the judge, government lawyers, and the lawyers for the plaintiff. Those lawyers would have to have security clearance; the evidence would not be shown to the plaintiffs themselves, or to the public. After review of the evidence, the court would rule. If the plaintiffs won, they would receive only symbolic damages—but they’d also get a judgment that the dead person had been killed illegally.

It’s an elegant plan, and the only one I’ve seen that would permit us to involve the Article III courts in adjudicating drone attacks. Executive-power hawks would object that courts have no business looking into the president’s use of the war power. But Vladeck points out that such after-the-fact review has taken place since at least the Adams administration. “I don’t think there’s any case that says that how the president uses military force—especially against a U.S. citizen—is not subject to judicial review,” he said in an interview. “He may be entitled to some deference and discretion, but not complete immunity.”

Epps mentions “Article III courts” there, and he’s referring to the federal court system established in the Constitution. The problem is that the Constitution limits such courts to adjudicating actual “cases or controversies.” The Supreme Court has created a fairly extensive body of precedent trying to describe what “cases or controversies” are, but some things definitely keep a mere problem from rising to the (grand, adjudicable) level of a “case,” and many of them might apply to ex ante authorizations of drone strikes. E.g.,

  • Courts can’t render “advisory opinions” — that is, they can’t rule on the constitutionality of a law or policy or executive action in the abstract, before there’s an actual plaintiff.
  • There must be “adversity” — i.e., both parties must be represented. Obviously, in an ex ante authorization of a targeted killing, neither the target nor anyone representing his interests could be present.
  • Cases must be “ripe” — i.e., something must actually have happened to the plaintiff. A concrete threat of state violence would do, but merely being on a list of possible targets might not.

Anyway, Vladeck’s proposal solves these problems by presenting ripe, non-advisory cases in a setting where representation of the victim/target is possible — and frames the issue in familiar tort terms, to boot. And even ex post liability, says Vladeck, might force officials to consider whether the use of lethal force is really justified.

As Epps points out, this is likely a political non-starter. But legally I think it’s got merit.

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