Targeted Killing and Credibility Signaling
[I]n November 2002, a Central Intelligence Agency (CIA) Predator drone fired a Hellfire missile at a vehicle in Yemen carrying an al Qaeda leader, a citizen of the United States, and four others. It is not clear whether the CIA knew that an American was in the vehicle. But the plurality’s due process would seem to require notice and opportunity to respond here as well.
This hypothetical posed by Justice Thomas in his Hamdi dissent more or less became a reality seven years after it was raised. On the morning of September 30, 2011, a contingent of American drones crossed the border from Saudi Arabia into Yemen to locate a group of men who were congregated around several trucks in the desert of Jawf Provence. As the men got into their cars to escape, pilots thousands of miles away took aim and fired. The strike killed, among others, two American citizens who occupied prominent roles within al-Qaeda in the Arabian Peninsula (AQAP): Anwar Al-Awlaki, an AQAP recruiter and operational leader, and Samir Khan, the editor of AQAP’s English-language online magazine Inspire. Alwaki was the target of the strike. Thus, his death defined the operation as a success. Unlike Khan, Awlaki had been placed on a so-called kill list—a register of al-Qaeda-linked operatives whose killings had been pre-approved. Hence, Alwaki also had the distinction of being the first American citizen since the Civil War to be targeted and killed by his government as an enemy combatant without a trial.
Although raised to make a point about due process requirements, Justice Thomas’s hypothetical, as well as President Obama’s decisions to place Alwaki on a kill list and subsequently to order his execution, give rise to a set of broader questions about how executive power is exercised. If a future president were inclined to order a similar operation, what might constrain him? And if such an operation were performed, what mechanisms would hold the president accountable? What might Congress or the courts do to control the president’s ability to order the killing of an American citizen, as an enemy combatant, on foreign soil?
Since Alwaki’s death, there have been numerous recommendations. Some proposals focus on ex-ante constraints, like statutory criteria that delineate and limit the president’s ability to order targeted killings, or judicial review of the decision to place Americans on a kill list. Other proposals instead center around ex-post accountability mechanisms, such as Congressional reporting requirements or Bivens damage awards. Regardless of whether the regulatory agent is Congress or the courts, there seems to be a consensus that something should be done to constrain the President.
Returning to the questions posed above—what can be done ex-ante to constrain the President and what can be done ex-post to hold him accountable—this Note takes a different approach. It argues that the current literature fails to take stock of the extent to which presidents have adopted voluntary constraints in the form of inter-executive procedures. Missing this, the literature also fails to explain why presidents have relinquished some of their discretionary authority. This Note attempts to address these shortcomings by documenting both the proposed reforms and the voluntary procedures that are already in place. In so doing, it suggests that the literature underappreciates the extent to which political forces constrain how the president exercises his discretionary authority.
At the outset, it is important to say three things about the scope of this Note. First, it focuses exclusively on American law. This is not meant to gainsay the potential of international law as a restraint on targeted killing policies; there is a healthy body of scholarship that debates whether or not international law can serve that purpose. Including that debate here, however, would make this project unwieldy, and might distract from its animating theme: the extent to which the American President’s approach to targeted killings is constrained by politics. Relatedly, this Note does not address the normative issues raised by targeted killing, at least not directly. As with international law, treating the normative questions with care and attention would take up too much space. Moreover, those questions are orthogonal to the issues at the heart of this project—this Note is not about targeted killing so much as it is about the relationship between politics and exogenous legal restraints. Lastly, this Note attempts to take an agnostic view on the extent to which targeted-killing policies may or may not be legal. That is, it does not consider what legal issues arise when a state executes a policy of targeted killing, and what framework should be used to evaluate those issues, nor does it make an argument as to what due process requires. Rather, it attempts to discover what mechanisms in fact control how the power to order targeted killings is exercised.
With this in mind, the Note is organized as follows. Part II surveys the scholarship on targeted killing and drones. It shows that while commentators have not all agreed on a package of regulations, there is a consensus that legal restraints imposed or monitored by a co-equal branch are necessary. It concludes by highlighting two lacunae in the literature: commentators have largely ignored the procedures Presidents voluntarily adopted to limit their ability to execute targeted killings, and they have failed to consider the potential of political restraints to limit the president. Next—tracking media reports and Gregory McNeal’s scholarship—Part III details the procedures that the executive has voluntarily adopted to regulate targeted killing. It argues that these procedures are responsive to the concerns that animated the commentators discussed in Part II, and that, nascent as these procedures are, there is reason to think that they will remain robust across administrations. Part IV answers the question of why the executive has acted to limit his ability to launch unfettered targeted killings: self-imposed intra-executive procedures are a means of credibility signaling on the part of the president. Put differently, the threat of political pushback or confrontation with other institutional actors has proven to be an effective motivator. Using credibility signaling as a theoretical framework, Part IV closes by suggesting reforms drawn from corporate law.
