March 24, 2012

DOMESTIC AND international strictures empower the president to use lethal force, including targeted drone strikes, to protect the country against attack. That is so whether the target is a foreign national or a U.S. citizen; and it is true whether the target is located on a traditional battlefield or ensconced in a foreign country that is unwilling or unable to assist in capture.

President Obama was on solid ground in relying on such authorities when he reportedly ordered a drone strike in Yemen last fall that took the life of Anwar al-Aulaqi. Mr. Aulaqi was a U.S. citizen, a radical cleric and, according to the administration, an operational leader of al-Qaeda in the Arab Peninsula. We supported dismissal of a lawsuit brought by Mr. Aulaqi’s father that sought to force the administration to disclose the criteria for placing someone on the “kill list” — a legal gambit that would have invited unprecedented judicial intervention into battlefield decisions in the absence of congressional or legal authorization.

But the legitimacy of such targeted strikes against U.S. citizens would be bolstered by additional review. That’s especially so when the government decides, not in a moment of urgency but with due deliberation, essentially to sentence an American to death. Most Americans may well feel there is something odd about insisting that America’s enemies have rights the instant they are detained, while targets of assassination have no protections at all.

A number of approaches could be considered, each with merits and pitfalls. Congress could establish a special court to assess whether the administration had sufficient intelligence or evidence to prove that the targeted individual was a member of al-Qaeda or an affiliated enemy force; posed an imminent threat to the country; and was unlikely to be captured without significant risks to civilians or U.S. forces. Such a court would be empowered to assess whether the administration has met domestic and international legal requirements to place someone on the target list, not to oversee the timing of a strike. A judicial determination of this sort would provide the most legitimacy, but it also could trigger serious separation-of-powers issues if judges engage in policy or logistical determinations that should remain the domain of the president.

Alternatively, the president could appoint a panel of current or former military and intelligence officials to assess individual targeting designations; this panel, because it would be housed within the executive, could also examine logistical questions, such as whether the administration had exhausted all efforts to seek cooperation from the foreign country for a possible capture. Creation of such a panel would not require congressional action, and it would avoid any separation-of-powers issues, but it would lack the independence of a federal court.

The president’s constitutional authority to act unilaterally to protect the country must not be eroded. His military decisions within recognized battlefields should not be subject to second-guessing by the judicial branch. But in those instances where an American who is located far from a conventional military zone is targeted for death by his own government, an extra level of review of some sort is warranted.