Friday, February 08, 2013

Does Anyone Have Standing to Challenge the Kill List Procedures?

By Mike Dorf

The "kill list" is back in the news, with the publication of a white paper that sets out the core of the Obama Administration's legal rationale for killing American citizens suspected of terrorism. When word of the underlying memo first leaked in the fall of 2011, I noted my puzzlement at how it appeared to blend analysis based on both a war paradigm and a domestic law enforcement paradigm, but I have since come to think that this approach was more or less required by Hamdi v. Rumsfeld, which applied a due process paradigm developed in the context of civilian cases to the detention of Americans captured in war. The white paper confirms the Administration's reliance on Hamdi.

The substantive legal debate centers on two issues: (1) What criteria must be satisfied in order for the U.S. to kill a U.S. citizen suspected of terrorism? and (2) What institution makes that judgment.  Civil libertarians tend to argue for strict criteria and judicial oversight, whereas national security hawks tend to argue for looser criteria and lodging the decision in the executive.  A good sample of the range of views on these questions can be found in the recent NY Times Room for Debate segment on the question.  For an excellent analysis that goes much deeper into the relation between the domestic law enforcement and international humanitarian legal issues, I recommend the forthcoming law review article, The Duty to Capture, by my colleague Jens Ohlin.

Now onto my own limited contribution: A thought on standing.

In their public defenses of the targeted killing program, government spokespersons have argued that substantial safeguards are in place within the executive branch.  At the same time, however, the government has resisted Freedom of Information Act (FOIA) requests about the details of the program, with considerable success.  For example, last month, the government won a motion to dismiss a FOIA lawsuit.  Even as Judge McMahon ruled in the government's favor, she lamented:
The Alice–in–Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules—a veritable Catch–22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret. But under the law as I understand it to have developed, the Government's motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied
The release of the white paper responds to Judge McMahon's particular frustration, but it only sets forth general justificatory principles.  It does not disclose the procedures the executive branch uses to evaluate whether any particular targeting decision is lawful and it certainly does not disclose whether any particular individual is on the kill list.

Likewise, the recent decision by the White House to share the underlying Justice Dep't memos with two congressional intelligence committees is only a partial response to the "Alice-in-Wonderland" problem.  It's not all of Congress; certainly the public won't find out the full content of the memos, at least not yet; and from what is known publicly, it appears that the memos themselves only contain a legal justification for targeted killings, not a description of the procedures that the executive branch uses to determine whether the substantive criteria are satisfied in any particular case.  I could be wrong about that last point, of course, because of the secrecy of the memos, but that just takes us back to ... well ... the secrecy of the memos.

Thus, for particular individuals, there continues to be a Catch-22, albeit a procedural one.  Suppose you think that the executive branch procedures for formulating the kill list either have or potentially will have the effect of wrongly putting you on the kill list.  Suppose further that you think the government is wrong about judicial oversight: you think that due process requires, at the very least, that a court should get to examine the executive procedures to determine whether they are adequate.  Can you sue?  In other words, do you have standing to go into court to make the argument that a court should get to review kill-list procedures? Surely you have the right to go to court to test whether you can go to court, right?  Probably not.

Consider the case of Anwar al-Aulaqi.  When word emerged that he was on the kill list, his father attempted to sue to enjoin the President from killing him.  The federal district court rejected the lawsuit on jurisdictional grounds, finding, among other things, that al-Aulaqi pere lacked standing to represent his son's interests.  Less than a year later, the government killed al-Aulaqi fils in a drone strike.

The district judge's standing decision did not preclude the possibility that al-Aulaqi fils could show up in court and have standing--except of course that al Aulaqi was not about to show up in court.  And surely anybody who has good reason to think he's on the kill list is extremely unlikely to show up in a U.S. court.  But suppose someone who thinks he may be on the kill list because of a terrible misunderstanding (a case of mistaken identity, perhaps).  Let's say that this U.S. citizen so trusts the U.S. justice system that he's willing to show up in a federal district court and present his evidence, even at the risk of being whisked away to Gitmo.  Does such a person have standing?

Again, probably not, because my hypothetical kill list challenger will likely have a very difficult time showing that he is on the kill list.  The government let it be known that al Aulaqi was on the kill list but in general the list is secret. Thus, another apparent Catch-22: If you want a court to say that the secret executive branch procedures for (maybe) putting you on the kill list were constitutionally inadequate, you first have to get into court to make your argument.  To do that, you need to show that you are "injured" by the procedures.  But if you can't even show you're on the list, how can you show that you're injured by the inadequacies of the list-making process?

The answer depends on what threshold the courts require for showing a chance of injury.  And as it happens, the SCOTUS has a case on its current docket presenting a closely related issue.  This past Fall, the Court heard argument in Clapper v. Amnesty International.  The case presents the question of whether lawyers, journalists, human rights activists, and others have standing to challenge the electronic surveillance authorized by the Foreign Intelligence Surveillance Act (FISA).  The district judge held that they did not because they could not establish that they were the targets of surveillance but the Second Circuit reversed, finding that it was sufficient to establish standing that the broad scope of the surveillance program gave rise to a reasonable fear of surveillance. It's not clear from the oral argument which way the SCOTUS is leaning, but even if standing is upheld in Clapper, the odds are against a finding of standing for just about anyone to challenge the kill list.

The key to the Second Circuit's holding was that the breadth of the electronic surveillance program gave rise to a fear of surveillance by a great many people.  Even if the Supreme Court agrees with that view, that probably won't help a plaintiff challenging the kill list because the kill list is much much narrower than the electronic surveillance program.  And of course, there's no guarantee that the Court will affirm the Second Circuit's standing holding in Clapper.

Accordingly, there is good reason to think that no one will be held to have standing to challenge the kill list procedures.  Note what I'm not saying: I'm not saying that the courts will determine that the Constitution commits the formulation of the kill list to the President, or to the President in consultation with Congress; I'm saying that the courts may well determine that they don't even have jurisdiction to answer the question of whether the Constitution requires judicial oversight of the kill list procedures. That conclusion would be consistent with the existing standing doctrine, which, I think, is a pretty damning commentary on the standing doctrine.