Executive decisions

Wednesday, December 22, 2010

The Obama administration has a federal judge to thank for ensuring that executive branch and congressional leaders and not those in judicial robes will, at least for now, continue to call the shots on targeted killings.

That determination was made in a case involving Anwar al-Aulaqi, the U.S.-born Yemeni cleric and al-Qaeda operative designated as a terrorist by the United States this year. Mr. Aulaqi is reportedly on a "kill list" of terrorism suspects for his alleged roles in the Fort Hood massacre and the attempted downing of a U.S. airliner by the would-be underwear bomber. Mr. Aulaqi's father filed suit to stop the administration from carrying out a strike against his son.

The conclusions reached in the case by Judge John D. Bates, who sits on the U.S. District Court for the District of Columbia, were stark: The elder Aulaqi has no standing to bring the suit; the younger could moot the possibility of a strike by presenting himself to U.S. authorities; and the judiciary has no business interfering with a military strike against a person deemed an immediate threat to national security. The judge also rejected an assertion that judges have the authority to second-guess - and hold the government in contempt - for strikes that have been executed outside of a recognized war zone that do not comply with domestic and international standards.

Judge Bates, nevertheless, expressed understandable discomfort. "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance," he wrote, "but that . . . judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?"

The two scenarios are distinguishable: Judges have long had a say in law enforcement issues involving searches, seizures and surveillance, but they have no expertise in or authority to intrude on the military, national security and foreign policy factors involved in targeted killing. Still, the concerns implicit in Judge Bates's question highlight the need for as much deliberation as possible before ordering such an attack - especially against an American citizen.

The Obama administration has said that it informs the pertinent congressional leaders of an impending strike and that the president signs off on such strikes. It should consider making public the criteria it uses to determine whether a strike is appropriate and necessary. It should also consider notification of a U.S. citizen to give him a chance to turn himself in or contest the designation.

Targeted strikes should be a last resort and should generally be limited to those instances where an individual who presents an immediate threat has sought refuge in a country that is unwilling or unable to apprehend him or permit the United States to do so. Judge Bates was right to preserve the ability of the president to act expeditiously when these circumstances arise.

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