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2014 | Targeted Killing and Judicial Review, by S.I. Vladeck, The George Washington Law Review Arguendo Vol. 82 2014

Ex post judicial review as a remedy for unlawful targeted killing operations

In targeted killing operations, the United States uses force based upon individualized determinations made thousands of miles away from any battlefield utilizing secret and otherwise unreviewable criteria. Often the use of force is deployed in parts of the world where there is no active fighting going on. In this work, the author purports that in at least some cases, judicial review of targeted killing operations is appropriate, or even necessary.

The possibility for judicial review in targeted killing cases has turned out to be an insurmountable hurdle for non-US citizens since they do not enjoy the same statutory and constitutional rights as U.S. citizens. However, the principal objection to judicial review of targeted killings is that judges of U.S. courts simply are found to be not competent to adjudicate the government’s power to use military force in any case, and so, in legal terms, the political question doctrine bars such review. Nevertheless, the author purports that the U.S. Constitution itself does not categorically preclude external supervision of the President’s military decisions and thus even targeted killing operations can be subjected to at least some judicial scrutiny. For this purpose, and in order to ensure that such cases are brought before federal judges with substantial and sustained experience handling highly sensitive national security cases, the author unfolds a proposal with an initiating role for the legislature: such review should be grounded in an express cause of action created by Congress. For that purpose, Congress should confer exclusive jurisdiction upon the U.S. District Court for the District of Columbia.

If a plaintiff can successfully demonstrate that the use of lethal force breached the U.S. Constitution, federal laws, or treaties to which the U.S. is a party to, the federal government should be held liable. The proposal is based on ex post (after the fact) review and consequently, a legal claim should be for damages, and, should therefore contain an express waiver of the United States’ sovereign immunity to ensure that money damages will actually be available in such cases.

The author acknowledges that the proposed remedy suffers from many flaws, and it is at best a least-worst solution. But despite its shortcomings, the proposal would be a big step forward in the ability of courts to oversee the Executive Branch “in a realm where the President has historically functioned with virtually zero judicial oversight”.