LEGAL VIEW: When is an assassination not an assassination?

By Scott Forsyth

The Daily Record Newswire

Everybody knows the United States targets for killing the leaders of al-Qaida and the Taliban in the war zones of Afghanistan. It tracks down and kills the leaders in neighboring countries. It also targets for killing the leaders of groups linked to al-Qaida, far from Afghanistan. And it targets those leaders even though they may be citizens of the United States.

The media reports the United States maintains a list of persons approved for killing. Last fall, in separate incidents in Yemen, drones killed two United States citizens on the list. A third citizen was collateral damage.

Following the killings, the ACLU submitted a FOIL request to three federal agencies, seeking documents about the legal basis for the program and the process by which the government adds Americans to the list.

In spite of the media publicity, the agencies would not "confirm or deny the existence or nonexistence of records responsive" to the request. The very existence of the program is "currently and properly classified." Request denied.

On Feb. 1, the ACLU filed suit to compel the government to turn over the records requested.

In the meantime, the government, ironically, keeps talking about the program. Ten days ago, Attorney General Eric Holder spoke at Northwestern about the legal principles underlaying the government's national security efforts.

He mentioned, in particular, "the use of lethal force" against "senior operational leaders of al-Qaida and associated forces," wherever they may be located. Such killings are not "assassinations," because they are "lawful," permitted under "both United States law and applicable law of war principles."

The federal law he is referring to is the resolution adopted by Congress following 9/11 authorizing the president to use all "necessary and appropriate force" against those who planned the attacks or who harbor said persons.

One may question the resolution's scope and its continuing need 10 years later, but Congress has not seen fit to modify the resolution or repeal it. Until Congress so acts, the president will interpret the resolution expansively.

The attorney general went on to say, rightly, a citizen who takes up arms against the United States can be targeted for killing. Nevertheless, a citizen residing outside the country is entitled to the protections of the Fifth Amendment and cannot be "deprived of life, liberty, or property without due process of law."

According to the U.S. Supreme Court, the process due in any given instance involves the weighing of the private interest impacted by the government action against the government's asserted interest. Key factors in the weighing are "the risk of an erroneous deprivation" of the private interest if less process is afforded, the "probable value, if any, of additional or substitute safeguards," and "the burdens the government would face in providing greater process," Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

Obviously, the private interest at stake in the killing program is the most elemental -- life. There can be little room for error.

Consequently, the ACLU argues a citizen outside a battlefield cannot be targeted for killing "unless he presents a concrete, specific and imminent threat to life or physical safety, and there are no means other than lethal force that could be reasonably be employed to neutralize the threat." In his speech, the attorney general mostly endorsed this test.

Then he made a breathtaking claim. Only the president can determine if a citizen poses such a threat and how the president makes this determination constitutes due process. There is no role for the courts before or after a killing.

The attorney general did concede that the president must disclose killings to Congress as part of his regular reports on counterterrorism activities. The disclosure is the only check on the president.

By not turning over records and by cutting out the courts, the president has created a program that effectively operates outside the law. Killings that occur outside the law and away from a battlefield are assassinations, the Attorney General notwithstanding.

If the president and the attorney general are truly interested in acting lawfully, they will let the courts review the program to assure that it comports with the Due Process Clause. Nobody is arguing the courts should get involved in real-time decisions to deploy lethal force away from a battlefield.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Thu, Mar 15, 2012