Courting Injustice: The 'Kill List' Proposal

Washington is abuzz with talk of secret kill lists, 'signature' drone strikes, rendition and torture. None of this is new -- except for the interest shown by some of our political class and some of the media. The occasion for this spark of interest is the appointment of John Brennan, White House anti-terrorism chief, to be Director of the CIA. Mr. Brennan is the co-author of many of these dubious actions and a gung-ho advocate of the muscular war on possible terrorists they are meant to serve.

Senate hearings on his nomination might have caused only a slight ripple were it not for the release by NBC of a secret Department of Justice memo justifying all of these actions along with those specifically directed at American citizens -- including extra-judicial murder of those residing abroad. Suddenly, a decade of passive acceptance, if not quite total silence, is punctuated by bemused voices murmuring that they are dismayed by what's going on. Of course, some of this is feigned. Condemnation has been highly selective and qualified. The preponderant attitude remains one of stoic dedication to doing whatever is necessary to keep Americans safe. After all, we have just seen that instructive documentary Zero Dark Thirty.

Still, there are the legal -- and constitutional -- issues raised by the DOJ's exculpatory memo itself. That exercise in Jesuitical rationalization is now receiving sober analysis by law professors. Congressional leaders are attentive observers -- and sometime participants. That flurry of mental activity has quickly spawned the proposal to set up extraordinary judicial panels, stocked with federal judges, to review requests from the Executive to whack those citizens suspected of posing an "imminent" threat to the United States or its interests. Foreigners who might be targets of such special attention would not be eligible for whatever protections the conjectured review hypothetically could provide. These panels would be modeled on those already established by the FISA Act of 1978 which in practice have given a loose rein to official requests for electronic surveillance -- both of the customized variety and the wholesale variety as done by the National Security Agency through its 'Echelon' program.

Several thorny issues of jurisdiction and procedure arise. They concern matters such as: will the review occur before or after the proposed action? How is "imminent" and therefore time urgency for a decision defined and who makes it? How is intent measured? How is capability to act on intent measured? How can this be done without due process -- other than in terms of Attorney General Eric Holder's definition of "due process' offered at Harvard last year as the thinking processes of Executive officials themselves? Despite the difficulty of coming up with convincing answers to these questions, momentum is building to move ahead with the panel idea.

This reaction conforms to the pattern of policy-making that marks the post-9/11 era. It is hasty, it is spurred as much by political concerns as sound public policy concerns, and it avoids the underlying issues of purpose and effect. This sequence masks the core problems. Yet, even by its own terms of reference, the judicial review idea looks unsustainable on legal and purely logical grounds. Here's why.

The idea of establishing an exceptional court to approve the names added to a kill list suffers from intrinsic flaws. For what it aims to do is to regularize something that is by its nature extraordinary -- extraordinary in contradicting established and constitutionally stipulated rules of jurisprudence and in violating deeply entrenched norms of American criminal justice. First, there is the principle of due process. Due process ceases to exist when we ensconce the opposite principle of arbitrariness -- whether it be the arbitrariness of the President and his senior subordinates or that of some special body accorded the power to review his judgment. For without laws that set standards, and formal means for determining whether they are being met, what we have is merely the possible super-imposition of one arbitrary judgment on another. In the Anglo-Saxon tradition, indeed in any legal system, eliminating that arbitrary element is the very purpose and the reason for its creation. You cannot be part pregnant, and you cannot determine pregnancy through subjective assessment.

In other words, even were the judges as pure as Vestal Virgins (which the experience of the in-house FISA courts tell us they will not be), we are replacing proper and fixed procedures grounded in law with ad hominine decisions by individuals bound by nothing more than their own sense of what the situation requires. In fact, the proposed arrangement would be a cosmetic legal veneer designed to calm the roiled political waters. In 2011, the FISA court received 1,745 orders for electronic surveillance or physical searches. It approved 1,745. The numbers speak for themselves -- including the remarkably high number of orders. Due process indeed; more like rubber stamp.

All of these drawbacks are compounded by the vagueness of the key terms: "threat," "imminent," "associated," "feasible." The anonymous DOJ legal memo justifying kill lists declares that "the stated conditions (it contains) would be sufficient to make a lawful operation in a foreign country against a U.S. citizen with the characteristics described above." This all turns then on the very broad definitions given in the description of extraordinary circumstances. An enemy that is not military opens a massive breach in what constitutes "threat." Words, material aid to anyone who may be involved in a conspiracy to take action, etc. So, too, does the eliding of "imminent." Also, the word "feasible" applied to the alternative of capturing the target rather that liquidating him on the spot is infinitely malleable. With the reference to organizations that may be associated with terrorist groups in thrown into the mix, the very notion of standards and guidelines evaporates.

The DOJ memo marshals its legal assertions under an umbrella claim that the Patriot Act provides a constitutionally valid blanket grant of authority to the Executive to do whatever it deems necessary to protect the United States. Thus, at the end of the day, the memo is little more than sophistic legal embroidery to justify an autocratic ruler's right to act arbitrarily with means and timing and target entirely at his discretion.

The line of argument propounded by the Bush and Obama administrations suggests that its reasoning could be made applicable to strikes against American citizens domestically. In fact, the National Defense Authorization Act (NDAA) that Obama signed last year does give the Executive unrestricted authority to seize citizens on U.S. soil and detain them indefinitely without any due process whatsoever - before or after the seizure. It need not as much as register that the incarceration at Guantanamo (as dictated by law) has occurred. The only thing it excludes is killing. Several months at the Guantanamo Hilton surely would take care of that omission.

The constant that underlines discussion of extraordinary -- and unconstitutional -- methods to secure the United States against terrorist attack is the premise that a grave menace lurks out there. In other words, the imperative to act is created by a claimed threat of the kind that materialized on 9/11. Yet there is no evidence that such is the case -- nor evidence that such a menace is in the offing. This has been true for the past decade. Who has the combination of will, organization, practical means and directive intelligence to generate that threat? No one. I plan to elaborate on the reasoning behind this conclusion in a later commentary.