JURIST Guest Columnist Wayne McCormack of the University of Utah SJ Quinney College of Law says that proposals to subject the executive branch’s proposed targeted killings to a process of judicial review misunderstand the nature of the judiciary and the rule of law…

I most respectfully but vociferously disagree with my friend, colleague and office neighbor, Professor Amos Guiora, over the prospect of judicial review in advance of a decision to kill a US citizen — or anyone else for that matter. My objections are not to his criteria for the use of lethal force but to the process by which he would involve Article III judges in a most injudicious activity. With his usual balance and sensitivity to the problems, here is what Guiora proposes:

The dangers inherent in the use of state power are enormous. On the opposite side of the equation, however, is the terrible cost of terrorism; after all, terrorists deliberately target innocent civilians[.] Rather than relying on the executive branch to make decisions in a “closed world” devoid of oversight and review, the intelligence information justifying the proposed action must be submitted to a court that would ascertain the information’s admissibility.

I have written elsewhere that the US Department of Justice’s (DOJ) “White Paper on Lethal Operations” (the current euphemism for killing individuals) is wrong-headed in its reliance on the law of armed conflict as the justification for targeting a person who is supposedly an “imminent threat.” The policy “does not require the [US] to have clear evidence that a specific attack on [US] persons and interests will take place in the immediate future.” The fuzziness of this notion of “imminent threat” stems directly from the proposition that the US is in a “state of armed conflict with al-Qaida.”

The problems with declaring an “armed conflict against al-Qaida” are several. Certainly, an insurgent group fighting for control of an occupied territory — such as the US faced in Iraq for several years and now faces in Afghanistan — qualifies as a party to an “armed conflict.” But a loosely aligned number of groups, perhaps communicating across the internet and perhaps sharing money and weapons provided by rogue regimes or criminal activities, hardly qualify as identifiable entities fighting for political objectives.

This notion of “armed conflict” could now draw the judiciary into a posture utterly incompatible with its role as the independent arbiter of the law. The function of a court is to decide disputes on the basis of principle, not preference. If the courts were to become enmeshed in deciding who is to be preferred over whom, they would lose the critical function of credibility upon which the rule of law depends. As the “least dangerous branch,” the judiciary has no power over either purse or sword but is absolutely essential to preserving the rights of the minority from the potential tyranny of the majority.

Guiora proposes that a court hear the “intelligence” — not “evidence” — against a person in secret before deciding whether that person is to die. This contravenes not just all of our constitutional safeguards of due process and confrontation of witnesses, but it enlists the judiciary into the service of the executive. If there are to be executions of persons who cannot be captured, which I am willing to admit may be justifiable in extreme cases of imminent threat, please do not damage the impartiality and credibility of the judiciary in the process. It is a fragile enough institution as it is.

The state must have a monopoly over the legitimate use of force. For force to be exercised legitimately it must comply with the rule of law, and the essence of the rule of law is visibility and uniformity in application of rules. It took me a while to figure out why the statue of Lady Justice is presented blindfolded — who wants a decision maker who doesn’t know what’s going on around her? But I finally realized that the blindfold is so that she doesn’t know who the parties are. She applies the law according to the book in her hand, not according to the persons before her or even her own preferences. For all these reasons, clandestine executions are necessarily extralegal necessary perhaps but not legitimate.

Despite the rule of law, we have recognized since the dawn of the republic, indeed since the dawn of civilization, that some executive action must be taken clandestinely for the safety of the nation. In my view, it is better that such action be left in the shadows rather than given a patina of legitimacy by judicial authority. The concept of a “license to kill” cannot be entirely fictitious for the simple reason that some threats are not capable of being met by the rule of law.

Threats that could justify clandestine executions, however, must be rare. I would certainly demand a much higher degree of “imminent threat” than the DOJ white paper envisions. And, like the Israeli High Court of Justice, I would insist on some reasonably independent after-action review to be sure that such extraordinary power is being used advisedly. I would much prefer to see a sharply curtailed number of instances than what we have seen lately, if for no other reason than that such indiscriminate use of violence fuels the jihadist fervor against us.

Although it is a good idea that there be a relatively independent review board over clandestine executions, the judiciary is not the place to put such an obligation. Let us preserve the judiciary for the function it does well, the evaluation of arguments on the basis of principle rather than guesswork over secret intelligence.

Wayne McCormack is the E.W. Thode Professor of Law at the University of Utah SJ Quinney College of Law. He previously clerked for the Hon. Walter Ely of the US Court of Appeals for the Ninth Circuit and taught at the University of Georgia School of Law. Professor McCormack teaches constitutional law, counter-terrorism and the international law of crimes and civil procedure.

Suggested citation: Wayne McCormack, Judicial Review of Targeted Killing: A Bad Idea by a Good Person, JURIST – Forum, Mar. 21, 2013, http://jurist.org/forum/2013/03/wayne-mccormack-targeted-killing.php