Is Holder right? It is hard to say for sure because the due process clause has never before been thought relevant to wartime presidential targeting decisions. The system described above goes far beyond any process given to any target in any war in American history. Awlaki was not given a formal notice and opportunity to defend himself in court, but war does not permit such formal practices. One predicate for the killing was that Awlaki was in hiding -- beyond legal process or the reasonable possibility of capture -- and plotting and directing attacks on the United States. The U.S. government made clear that if Awlaki "were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner, legal principles with which the United States has traditionally and uniformly complied would prohibit using lethal force or other violence against him in such circumstances." And as Judge Bates noted, while Awlaki's placement on a targeting list was publicly disclosed in January 2010, Awlaki publicly disclaimed any intention of challenging his status or turning himself in.
It is hard to see how the executive branch could have taken its constitutional responsibilities more seriously while honoring its obligation to keep the nation safe. In light of Judge Bates's ruling and the analysis on which it rests, and until Congress thinks the president's approach to targeting requires change, the current system -- executive deliberation guided by judicial precedent and subject to congressional oversight -- almost certainly satisfies any constitutional requirement. In any event, it belies the claim that the president is not subject to checks and balances.
This conclusion will not assuage critics like Andrew Rosenthal who insist that "the president must receive judicial input before ordering the death of an American citizen." What Rosenthal and other krytocrats have not explained is how the Constitution permits, much less demands, such ex ante judicial input. These critics have not grappled with Judge Bates's analysis. Nor have they explained how a presidential request for judicial approval to target and kill a terrorist suspect is consistent with the constitutional limitation of judicial power to cases and controversies between parties in court.
It is also unclear whether judges possess the competence to assess and quickly act upon military targets, or whether they would welcome the responsibility for targeting decisions. Perhaps Congress could devise a lawful and effective scheme of judicial or administrative review of the president's targeting decisions. But it has shown no inclination to do so, and it appears to support the current arrangement.
The final and arguably most fundamental check on the president's targeted killing program is public disclosure and debate. Public congressional hearings have revealed a lot about the factual and legal basis for the government's program. At the same time, human rights NGOs, led by Romero's ACLU, have filed lawsuits and made Freedom of Information Act requests about the practice, and issued many hard-hitting reports. These efforts have pressured the executive branch -- in speeches, document disclosures, and leaks -- to make public more and more factual and legal details about its targeted killing program over time. The U.S. and global press have also disclosed many details of supposedly secret or covert targeted killing operations against White House wishes. In general, technological innovation in the last decade has made the press and public more adept than ever at scrutinizing the wartime presidency's secret operations, including its targeting decisions.
These disclosures have fostered a robust public debate about targeting killing in the United States and abroad, and the American public broadly approves of what it sees. According to a recent Washington Post/ABC News poll, 83 percent of respondents (including 77 percent of liberal Democrats) say they approve of the Obama administration's use of drones against terror suspects overseas, while only 11 percent disapprove. The approval/disapproval numbers drop to 65/26 percent when respondents are told that the targets are American citizens. As the Washington Post's Greg Sargent noted, "65 percent is still a very big number." Sargent added that "Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35."
To say that the targeted killing program is embedded in a serious system of checks and balances, and is approved by the American people, is not to say that the government's public justification of the program has been optimal. It has not. The most glaring problem is that the whole world knows about U.S. targeting practices but the U.S. government cannot talk about them openly -- because the operations are either covert (which means they cannot be officially acknowledged) or classified (which means they cannot be discussed publicly), or both.
There are good reasons why the government must be careful in its public discussion of particular targeting practices, even if aspects of the practices are publicly known. One is that the intelligence on which they are based is often fragile, and can evaporate if the means or methods of intelligence are disclosed. Another is that, as Abram Shulsky and Gary Schmitt explain, the government sometimes doesn't publicly acknowledge their involvement in covert action for diplomatic reasons:
It is less provocative and less disruptive to diplomatic relations not to acknowledge an operation even if the country adversely affected by it is well aware of one's involvement. The target country, either in the interests of good relations or because it cannot effectively prevent it, may ignore the covert action; it is much harder for it to do so if the government conducting it publicly acknowledges what it is doing.
In short, certain actions are covert because an agreement to deny U.S. involvement was a condition of cooperation from the host country.
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