Comment Paper #5: Are Due Process and TK Compatible?

This weeks reading about targeted killing (or TK) made me think about the debate that has surrounded this military tactic. Much of the discourse surrounding the use of targeted killing has centered on the fact that it occurs without the prerequisite of due process, where the individual in question is extradited and tried. Because of the urgency of many of these scenarios, such as the one posed by Blum and Heymann, it is important for action to be taken quickly. Therefore, the questions should be asked as to whether in these situations, strict adherence to due process necessary and/or it is ever fully possible to supply due process to the individuals being targeted. There are several possible answers to these questions.

To be clear, I am in no way advocating that any of these “solutions” should be adopted as US legal policy. On the contrary, I am completely unsure as to whether any of my thoughts could indeed function as a substitute for traditional due process in the form of a trial. I am simply relaying a string of thoughts and ideas that are reflective of my four years of studying government and politics. Now, moving forward, I will discuss the various ways in which the due process requirement could be met in the future practice of TK.

The easiest argument in support of TK to maintain in the face of its criticism would be that due process is unnecessary in the context of warfare. In order to more fully analyze this position, we turn to what Finkelstein, Ohlin, and Altman call the “Individualist” model of Just War Theory (JWT). In this analysis of JWT, the “right to kill human beings in war is ultimately the same license we have to kill in individual self-defense.” Therefore, large-scale warfare (and the casualties that come with it) are simply the amalgamation of each individual soldier’s right to defend themselves being put into action. In essence, from this perspective, we can look at TK as each sniper or drone operator defending themselves from attack by killing the intended target. This is not such a stretch of the imagination if killing in self-defense is indeed a tactic that has been used in justification of many domestic killings. By following this argument, waiting for any due process could be seen as putting yourself and/or the lives of soldiers in danger as the threat of an attack from this individual becomes greater with each passing moment.

However, if we approach this dilemma from the perspective that due process is always necessary, we are confronted with more variables. The most prominent of these variables would be: exactly what type of due process should be supplied?  For civil rights advocates, the ideal form of due process would be traditional extradition and a trial. However, given several diplomatic and tactical realities, can this solution be implemented effectively? What if we have strained relations with the government of the host nation and they are unwilling to cooperate? What if there is no time for the suspect to be extradited and tried?

It is because of these questions that I have given some thought into what could be done if these situations ever arose (which probably happens frequently). For one, ad hoc military courts could be created for the specific purpose of determining the guilt of the individual, where he/she receives an advocate, who then goes back and forth with a “prosecutor” over the alleged evidence of their wrongdoing, and then a tribunal of military officials deliberates on the party’s guilt. Obviously, these ad hoc courts would have to be held with the defendant in absentia and, therefore, obvious contestations could arise from that detail.

Another, more extreme solution would be for the US government to claim that the initial deliberations by military officials to strike are all the due process needed. It may sound incredibly harsh, but there have been similar decisions by government officials and even by the courts when talking of due process for certain groups of people. For example, in the famous case Yamataya v. Fisher (1903), a Japanese immigrant woman was deported without what you and I would call the traditional due process of an immigration hearing to determine if she was actually in the country illegally. However, the Court ruled that the initial interview that was conducted between the woman and an immigration official was all the “due process” that was needed. Therefore, the decision that the presentation of evidence to military/government officials, who then are the sole deciders of an enemy combatant’s fate, could be viewed as an acceptable exercise of due process if viewed through the Yamataya analysis.

Obviously, I am not proponing any of these solutions. Some of them seem plausible to me, while others do not. However, what is more important to me is the debate. What do all of you believe would be the best way to meet the standards of due process when it comes to the use of TK? Or do you think that it is impossible to meet those standards and the US should either A) abandon the use of drones in TK or B) justify it through the “Individualist” self-defense analysis?