October 24, 2013

Due Process in Targeted Killings Needs Greater Protection, ACS Issue Brief Says

Deborah Pearlstein, drones, Due Process, Targeted Killings

Cardozo Law Professor Calls for Critical Procedural Reforms
October 24, 2013
Jeremy Leaming
(202) 393-6181
WASHINGTON – In the wake of new reports from human rights groups about the toll America’s drone warfare has had on civilians in Pakistan and Yemen, an expert in constitutional law and international human rights argues in an ACS Issue Brief released today that the government can and should do more to enhance procedures to reduce risk of civilian deaths.
Deborah Pearlstein, assistant professor of law at Benjamin N. Cardozo School of Law, writes in “Enhancing Due Process in Targeted Killings,” that before “it is possible to dismiss the application of constitutional due process in targeting as either hopelessly impractical, or hopelessly inadequate, it is necessary to begin with a serious assessment of existing procedures.”
She continues that “even if one believes the Constitution does not directly apply, any government agency must pursue some kind of process before engaging in lethal targeting operations – from deciding who and what to target, to assessing whether the person or facility struck was in fact the intended subject.”
In her Issue Brief, Pearlstein notes due process procedures as currently applied to military targeting doctrine before proposing reforms that strengthen its guarantees.
In the 1976 Supreme Court case, Mathews v. Eldridge, the Court established a three-part test for determining how much process is due to an individual before a deprivation of property. The test takes into consideration the following criteria: (a) the individual interest; (b) the government interest; (c) the risk of error and the value of procedural change.
Pearlstein rejects the view “that no ‘deprivation’ is affected in due process terms in the context of collateral targeting deaths.” She also points out that the government’s “interests in ‘waging war’ and ‘removing threats’ are not unqualified,” but in fact, “are matched by aligned interests in fighting war effectively, in avoiding error, and in complying with the international legal obligations” the government has agreed to follow.
Her analysis points to a primary focus on the third Mathews criterion – namely, consideration of “the risk of an erroneous deprivation through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” This area of due process jurisprudence, Pearlstein suggests, holds the greatest potential for growth.
To make her case, Pearlstein lays out the procedural landscape for target development. “There is much to commend in [current] doctrine,” she writes, “including: the development of a record…supporting a targeting decision; the integration of legal personnel in multiple stages of review; and the obligation on all participants to establish a degree of certainty surround the facts and law supporting the supporting a decision to pursue a lethal strike.”
“But by any Mathews measure of due process,” Pearlstein asserts, “[these] procedures fall short of the fundamental minimum: there is no notice to deliberate targets and no opportunity, pre or post-deprivation, for a potential target to be heard.”
Pearlstein advances concrete proposals for “incremental improvement” to these procedures, including “clear and public notice of those particular nations or organizations with which the United States considers itself at war” as well as “the inclusion of an opposition advocate…tasked with advancing arguments in opposition to any targeting decision.” She also recommends heightening the standard of proof required to authorize a strike.
Private individuals and government officials, Pearlstein concludes, can find common ground on this issue because “both favor identifying and implementing procedures that can reduce the risk of tragic error.” In that unity, we can see prospects for progress.
Read the full Issue Brief here. To speak with the author, contact Jeremy Leaming, ACS Director of Communications, at jleaming@acslaw.org or (202) 393-6181.
The American Constitution Society for Law and Policy (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit www.acslaw.org.