Department of Justice defends killing American terrorists

February 5th, 2013

sloane2_white_65wA Justice Department memo released on Monday says that the U.S. government can authorize the killing of American citizens overseas if it is believed they are “a senior, operational leader” of al-Qaeda or one of its affiliates, and is an “imminent threat” to the United States.  The memo is sure to be one of the topics during the confirmation hearing of John Brennan, President Obama’s nominee as the next director of the CIA. Boston University School of Law professor Robert Sloane, an authority on human rights and international criminal law, offers the following opinion piece:

In Hamdi v. Rumsfeld, a plurality of the Supreme Court held that before the executive may detain a U.S. citizen as an ‘enemy combatant’ or prisoner of war, he must receive some due process.

The plurality left its scope and nature somewhat vague and subject to a balancing test but said it must include at least notice and an opportunity to rebut the charges before a neutral judicial officer.  Justices Scalia and Stevens would have prohibited the practice altogether unless Congress had first suspended the writ of habeas corpus.

The plurality holding, while dubious in my view for the reasons suggested by Justice Souter’s concurrence, makes some sense in light of the Fifth Amendment’s guarantee that no one shall be deprived of liberty without due process of law.

It’s also inconsistent with Attorney General Eric Holder’s claim that due process need not require judicial process in circumstances comparable to those in Hamdi.  Indeed, in Hamdi, the Court dealt with a recognizable armed conflict rather than the amorphous global conflict with al-Qaeda and its allies or affiliates – or simply unspecified and non-imminent threats to the United States — the context to which this policy apparently extends.

At any rate, if judicial process along the lines suggested in Hamdi is required by the Fifth Amendment before deprivation of liberty, it’s hard to understand how a U.S. citizen may nonetheless, according to the administration, be deprived of life without at least comparable process to that required by the Hamdi plurality.

To my mind, it’s unacceptable that the administration continues to refuse to release its ostensible legal justification for the arrogation of authority to engage in executive targeted killing of U.S. citizens outside of recognized war zones, including, so far as we know, the United States itself.

Certainly, there’s no valid reason for withholding the legal justification from Congress, which has, among other germane constitutional powers, the authority to ‘make rules for the government and regulation of’ the armed forces of the United States.

Contact Sloane at 617-358-4633;

2 Comments on Department of Justice defends killing American terrorists

  • This is a first. I spent three years at BU Law and this is the first times I’ve ever heard a member of the BU Law faculty criticize a Democrat, be that Democrat a politician or member of the judiciary.

  • Unfortunate that the only comment so far seeks to politicize rather than discuss substance.

    One of the inherent problems with the “war on terror” is that there is no effective way to delineate a “war zone” or a “combatant” when the area of conflict covered is “the entire planet.” This vagueness has been used to justify extraordinary renditions and torture with approval from the White House. Can we say with certainty whether individuals were “disappeared” from US soil and taken to Black Sites? Would the Hamdi decision make such hypothetical government actions clearly a breach of the Constitution as well as international law?

    Frankly, the Rand Paul filibuster struck me as grandstanding and publicity hound behavior. No one sensibly believes that the issue is whether a drone would be used to kill “Jane Fonda sitting peacefully in a coffee shop” or any other “unfriendly” not actively engaged in some activity that reasonably could be shown to present imminent loss of life. The issue then seems more of a question of justifiable police tactics in the face of immediate public danger and loss of life.

    If authorities had known about the killer in Aurora and his plans prior to his entry into the movie theater, would due process restriction have prevented intervention by indirect or remote devices to neutralize the threat? [such as a drone strike on his vehicle?] What about the ex-con in NY who set fire to a house to lure police into a trap? Would a drone have been permissible to take him out rather than continue to subject personnel to gunfire that resulted in injuries and death? Was he an enemy combatant in the war on terror by reason of his terrorist actions, albeit on US soil? The focus of the Supreme Court should perhaps be placed upon defining and delimiting vague terms of definition to more traditionally understood types of “war.” Then many of these questions might resolve themselves.

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