Due Process and Drone Strikes

Last week, the New York Times published a lengthy article on the 'secret kill list' being maintained by President Obama. Whatever the merits of targeted killings as a matter of international law, international human rights law, or justice, for students of administrative law, there are at least three aspects of interest to the story. To be clear, in what follows, I am not taking a position on the legality or morality of the strikes. But in the absence of formal due process through judicial review, it is worth considering the internal safeguards that administrative law norms suggest.

First, consider the process by which it is decided to order drone strikes:

It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.

This secret “nominations” process is an invention of the Obama administration, a grim debating society that vets the PowerPoint slides bearing the names, aliases and life stories of suspected members of Al Qaeda’s branch in Yemen or its allies in Somalia’s Shabab militia. The video conferences are run by the Pentagon, which oversees strikes in those countries, and participants do not hesitate to call out a challenge, pressing for the evidence behind accusations of ties to Al Qaeda.

“What’s a Qaeda facilitator?” asked one participant, illustrating the spirit of the exchanges. “If I open a gate and you drive through it, am I a facilitator?” Given the contentious discussions, it can take five or six sessions for a name to be approved, and names go off the list if a suspect no longer appears to pose an imminent threat, the official said. A parallel, more cloistered selection process at the C.I.A. focuses largely on Pakistan, where that agency conducts strikes.

One wonders what these "contentious discussions" consist of. At the very least, one hopes that the principle of audi alteram partem is respected: both sides of a dispute should be heard. Someone, or perhaps a team of people, should be charged with the exclusive task of putting the case against killing an individual on the list. Evidently, the individual concerned will not be able to participate, but some other means of asserting their interests ought to be developed. Special advocates are employed to this end in other jurisdictions and could also make a meaningful contribution here. Groupthink, the drive to fulfill a mission and achieve unanimity at the expense of consideration of alternative avenues of action, will otherwise set in. If it does, the group's desire to kill off Al Qaeda could lead it to take actions which, strictly speaking, are not necessary to that end. In short, my suggestion is that robust (or more robust, or even some) procedural protections may offset the risk of groupthink.

Secondly, you might wonder why and how individuals are placed on the list in the first place and whether they ought to be able to apply to have their names removed. Preliminary, investigative or internal decisions which have no effect on an individual's legal rights do not usually attract any procedural protections. Here, however, the act of placing an individual on the kill list is clearly a decision with grave import. One hopes that there is a robust process of selection; my comments above about procedural protections and groupthink apply with equal force to the initial decision to list the individuals. Once an individual has been placed on the list, it should be possible for them to be removed, perhaps at their own instance. In the United States, however, the robust 'political question' doctrine has been an effective shield against attempts to judicially review listing decisions. This is a pity, for there are a variety of doctrinal and procedural tools that courts could employ to open up such decisions to scrutiny without undermining the policy prerogatives of the executive branch. Doctrinally, deference can be accorded. Procedurally, not all material need be disclosed publicly: the UK Government may be going too far with its recent proposals for closed hearings, but some variant on the theme could be made available.

Finally, consider the Obama administration's approach to cost-benefit analysis. One of the key questions which must be answered before performing such an analysis is what costs and benefits should be counted. Concerned about collateral damage undermining the moral case for targeted killing, the Obama administration has imposed a simple rule which effectively eliminates collateral damage. Except, that rule is not a rule of combat; it is a rule of cost-benefit analysis:

Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good. “Al Qaeda is an insular, paranoid organization — innocent neighbors don’t hitchhike rides in the back of trucks headed for the border with guns and bombs,” said one official, who requested anonymity to speak about what is still a classified program.

This counting method may partly explain the official claims of extraordinarily low collateral deaths. In a speech last year Mr. Brennan, Mr. Obama’s trusted adviser, said that not a single noncombatant had been killed in a year of strikes. And in a recent interview, a senior administration official said that the number of civilians killed in drone strikes in Pakistan under Mr. Obama was in the “single digits” — and that independent counts of scores or hundreds of civilian deaths unwittingly draw on false propaganda claims by militants. 

But in interviews, three former senior intelligence officials expressed disbelief that the number could be so low. The C.I.A. accounting has so troubled some administration officials outside the agency that they have brought their concerns to the White House. One called it “guilt by association” that has led to “deceptive” estimates of civilian casualties. “It bothers me when they say there were seven guys, so they must all be militants,” the official said. “They count the corpses and they’re not really sure who they are.”

The malleability of cost-benefit analysis can be felt in this extract. Its moral import too, as this story demonstrates how important value choices are never far from cost-benefit analysis: costs and benefits simply cannot be weighed in a moral vacuum. Choosing what to count and how to count will invariably involve difficult judgments.

For more on the legal aspects of targeted killings, see here and the links therein; on the moral aspects, this recent essay is a good starting point.