Targeted Killing and the Rule of Law

CATO’s June 2011 issue of Unbound is entitled “Targeted Killing and the Rule of Law” An excerpt:

When can the executive lawfully kill?

The rule of law itself depends on getting the answer right. Clearly that answer can’t be “never,” because then even defensive wars would be impossible. And it can’t be “whenever,” because that would be the very antithesis of lawful government. As F. A. Hayek wrote, “if a law gave the government unlimited power to act as it pleased, all its actions would be legal, but it would certainly not be under the rule of law.”[1]

The answer must be “sometimes” — but which times are those? In wartime? In peacetime? Against aliens? What about citizens? What role do the courts play? And what about the legislature?

In answer to these questions, lead essayist Ryan Alford draws on the Anglo-American constitutional tradition, arguing that the killing of a citizen or subject without judicial authorization was so far opposed to our traditional legal safeguards that the American Founders didn’t even bother to prohibit it in the Constitution. And yet, he argues, the case of Anwar al-Awlaqi shows that our government now claims this power anyway.

To discuss with him this month, we’ve lined up a panel of legal and historical experts: John C. Dehn of the U.S. Military Academy at West Point, Gregory McNeal of Pepperdine University, and Carlton Larson of the University of California at Davis. Each will offer a commentary on Alford’s essay, followed by a discussion among the four on this timely and important subject.

Here is the sequence of events:

Lead Essay

Sentence First, Verdict Afterwards by Ryan Alford.

In one sense, “targeted killing” is what war is all about. But can the executive branch rightfully declare a U.S. citizen the target of an assassination order? Lead essayist Ryan Alford argues that the “presidential death warrant” is repugnant to the rule of law—so much so that the Founders didn’t even think it necessary to make an explicit statement about the practice. At the time of the Revolution, English kings hadn’t enjoyed such a power for centuries, and it was thought to be the very antithesis of the rule of law. A power of this magnitude cannot be simply inferred from the Constitution’s silence, particularly when legal practice in the Anglo-American world tells so strongly against it.

Response Essays

• Response by John C. Dehn, June 8.
• Response by Gregory McNeal, June 10.
• Response by Carlton Larson, June 13.

The Conversation

• Conversation to follow June 13.

Related at CATO

• “Targeted Killing of U.S. Citizen a State Secret?” by David Rittgers.
• “Obama’s Extra-Judicial Killers Subvert American Values,” by Nat Hentoff.
• “With Presidential Drones, Who Needs Justices?” by Nat Hentoff.