High Value Target HVT / Political Assassination

[jmm99]

Looking at the FISA Wiki and FAQs, I notice only that its constitutionality has been upheld:

19. Is FISA really constitutional?

Lower courts have found FISA constitutional. See e.g., United States v. Duggan, 743 F.2d 59(2d Cir. 1984); United States v. Belfield, 692 F.2d 141 (D.C.Cir 1982); United States v. Nicholson, 955 F.Supp. 588 (E.D. Va. 1997).

In United States v. U.S. District Court, the Supreme Court used a two-part Fourth Amendment reasonableness test. It is doubtful whether the FISA review process satisfies the Court's first measure of the reasonableness of warrantless surveillance -- whether the citizens' interest in privacy and free expression are better served by a warrant requirement.

The second element—whether a judicially imposed law enforcement warrant requirement would "unduly frustrate the efforts of Government to protect itself"—may be more easily met in the foreign intelligence setting. But Title III has for more than 30 years required more stringent procedures for criminal investigatory wiretaps.

but haven't looked at the cases for what grounds of unconstitutionality were raised. The grounds stated in the last two quoted paragraphs deal with Fourth Amendment, not Article III, issues.

I suppose the argument could be (and it is something of a bootstrap) that issuance of warrants (a non-adversarial proceeding in itself) by Federal judges and magistrates is a judicial function going back into pre-Constituitional common law. A warrant does not necessarily develop into a criminal case; and if it does, that case is not necessarily before the judge or court that issued the warrant.

A FISA warrant may or may not lead to a criminal charge, which if brought would be before a regular Federal District court (clearly a "case or controversy" at that point). That's the best I can think of off the top of my pointy head.

A "targeted killing" court would have no historical precedent. In fact, the historical precedent (death sentence) requires a full-blown adversarial proceeding.

That is an interesting point to consider: why can we kill enemy combatants without judicial proceedings ? The answer is that traditionally enemy combatants come under the Laws of War, which allow that (subject to limitations, etc.; but imposed by the Laws of War). Concepts imposed by the Rule of Law (whether domestic or international), due process, search & seizure, coerced confessions, fruit of the poisonous tree, etc., do not apply to the Laws of War in full measure, if at all.

Envision a situation where a group of AQ irregular combatants invade the local school in your US town. One option is law enforcement rules (Rule of Law - more restrictive, but maybe a better way to go to get the kiddies out alive). Another is military engagement rules (Laws of War), which could be less restrictive, but might not be the best choice in a hostage situation. My own choice would be to go with the Laws of War, but adopt law enforcement tactics. Just because you have a hunting license, you don't have to kill everything in the forest.

OK, the hostage situation comes out fairly well (not too many kiddies killed); some bad guys down and out; some surrender. What to do with them ? I'd say there are two paths (not necessarily exclusive). The default path should be detainment as irregular combatants for the duration of the conflict - they are security risks (under the Laws of War). An optional path would be domestic criminal prosecutions (Rule of Law) - cf., Noriega.

At home tonite, I'll have to download the "kill-lawyers" article (love "kill-lawyers") and read it more thoroughly. BTW, the Simon-Stevenson article is well-written and researched; but I couldn't buy their "solution".

Regards

Mike

PS: Had to add this from the Anderson article (quick skim) cuz I like it when someone agrees with me (p.42, note 61):

61 For a tiny sample, see notes to Amos N. Guiora, Targeted Killing as Active Self Defense, 36 CASE W. RES. J. INT’L L. 319 (2004). I have not in this chapter devoted attention to Israel, although it has a far more developed jurisprudence around targeted killing than the United States. The reason is that the nature of the long-term conflict, the fact that the conflict takes place in a confined geographic space, the special role of the Israeli Supreme Court in Israeli society and other factors make me believe that the Israeli experience is actually less instructive for the United States than one might otherwise have thought. It seems to me quite inappropriate in the U.S. context to discuss judicial review of targeting killing, for example.