This Article focuses on the accountability of the Central Intelligence Agency (CIA) in relation to targeted killings, under both United States law and international law. As the CIA, often in conjunction with Department of Defense (DOD) Special Operations forces, becomes more and more deeply involved in carrying out extraterritorial targeted killings both through kill/capture missions and drone-based missile strikes in a range of countries, the question of its compliance with the relevant legal standards becomes ever more urgent. Assertionsby Obama administration officials, as well as by many scholars, that these operations comply with international standards are undermined bythe total absence of any forms of credible transparency or verifiable accountability. The CIA’sinternalcontrolmechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a ‘free pass’ to the CIA in this area; judicial review has been effectively precluded; andexternal oversight has been reducedto media coverage which is all too often dependent on information leaked by the CIA itself. As a result, there is nomeaningfuldomesticaccountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining ofthe international rule of law, and the setting oflegal precedents which will inevitablycome back to haunt the United States before long when invoked by other states with highly problematic agendas.
Executive action alone doesn’t solve --- doesn’t provide sufficient reassurances
McKelvey, 11 [Benjamin, JD Candidate, Senior Editorial Board, Vanderbilt Journal of Transnational Law, “Due Process Rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power,” Vanderbilt Journal of Transnational Law, November, 44 VAND. J. TRANSNAT'L L. 1353, http://www.vanderbilt.edu/jotl/2012/06/due-process-rights-and-the-targeted-killing-of-suspected-terrorists-the-unconstitutional-scope-of-executive-killing-power/]
The Obama Administration’s Reassurances Are Circular and Unsatisfactory The Obama Administration has addressed the controversy over targeted killing in an effort to assuage concerns over the program’s constitutionality, including concerns over due process protections.162 However, the Administration’s explanations do littlebut reiterate the gaping hole inguaranteed due process protections if Americans are targeted with lethal force.163 In fact, the Administration’s attempts tojustify the current response emphasize thedesperate need for a cleararticulation of the law and amechanism for constitutional safeguards.164 Harold Koh, the Legal Adviser to the Department of State, addressed the criticisms of targeted killing in a speech at the Annual Meeting of the American Society of International Law in March 2010.165 Koh addressed the concern that “the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing.”166 First, he asserted that a state engaged in armed conflict is not required to provide legal process to military targets.167 Koh then attempted to reassure the critics of targeted killing that the program was conducted responsibly and with precision.168 He said that the procedures for identifying targets for the use of lethal force are “extremely robust,” without providing any explanation or details to substantiate this claim.169 He then argued that “[i]n my experience, the principles of proportionality and distinction . . . are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with international law.”170 Koh dismissed constitutional claims over targeted killing by simply suggesting that the program is legal and responsible.171 But this response only begs the question over targeted killing: what mechanisms are in place to prevent the unsafe and irresponsible use of this extraordinary power? Assertingthat theprogram is legal and responsible without substantiating this assertion rests on notions of blind faith in executive prudence and responsibility, and provides no grounds for reassurance.172 The Obama Administration’sassurances regarding the targetedkilling program are unsatisfactorybecause they fail to address theprimary concern at issue:the possibility that an unchecked targetedkilling power within the Executive Branch is an invitation for abuse.1 73 Without some form of independent oversight, there is no mechanism for ensuring the accurate and legitimate use of targeted killings in narrowly tailored circumstances.174
Wexler, 13 [The Role of the Judicial Branch during the Long War: Drone Courts, Damage Suits, and FOIA Requests, Lesley Wexler, Professor of Law and Thomas A. Mengler Faculty Scholar, 3rd Speaker and semifinalist 1998 National Debate Tournament, p. SSRN]
4.4 The Underwhelming May Revolution In 2013, the President began speaking directly about drone[s]and emphasizing the importance not only of transparency, but alsoaccountability. In February 2013, Obama pledged in his State of the Union address and in a follow up google “fireside chat,”158 to continue congressional oversight and make compliance efforts more transparent. In May 2013, he gave a widely touted counterterror ism speech, codified key elements of targeted killing policy standards and procedures,159 and de-classified information regarding strikes on American citizens.160 This trio of events reiterated sever-al constraints on U.S. behavior that exceed IHL requirements including: a binding policy preference for capture over kill, the limit of lethal force to targets that pose a continuing, imminent threat to U.S. persons,” and “near-certainty that no civilians will be killed or injured” before a strike is cleared. Other notable revelations include the strong rejection of military age males as a legitimate signature for strikes.161 Both his speech and a contemporaneous letter from the Attorney General explained when U.S. citizens may lawfully be targeted outside the United States and provided a specific justification for why al-Aulaqi was targeted.162 Some, including U.N. Special Rapporteur Ben Emmerson believe these May activities indicate a fundamental shift in favor of transparency and accountability.163 Yet many remain skeptical of thisseeming May Revolution in the executive branch’sapproach to the war on terror. It isnot clearthat either the goal of transparency or accountability have beensignificantlyadvanced. As described above, previous administration speeches had already outlined most of the details. Even the newinformation is fairly thinin terms of providing any real sense to the public of what the rules are or whether the U.S. complieswith them. For instance, the Presidential Policy Guidance only provides key elements of the significantly more detailed legal and policy guidance provided to Congress.164 Nowhere in that guidance or the speech is there an outline of any post-strike review. While Obama’s speech indicatedhis ongoing consideration of drone courts and an independent oversight board in the executive branch, he provided no detailas to whether the administration would ultimately adopt either of these accountability mechanisms. So many important questions raised earlier remain unanswered after the May actions. We now know that being a military aged male is an insufficient signature, but what signatures are used for signatures strikes and how are they justified as legally adequate? We now know that there should be a near certainty of no civilian casualties, but what are the government’s civilian casualty estimates? Relatedly, how does the United States assess the status of individuals once deceased? What retrospective accountability mechanisms are in place? Has the government determined that any strikes it engaged in violated IHL? Are the enhanced roles of the Congress and the NCTC having specific effects on drone policy? Are they making the policy more compliant? Yet these May activities still matter. For one, they implicate the synergistic relationship be-tween the executive and judicial branch. Just as this chapter has argued that the courts and threat of courts may help spur executive action, that executive action in turn influences and may facilitate the courts’ activities. Mere hours after the May acknowledgement of the government’s responsibility for the strikes killing al-Aulaqi and other Americans, Judge Collyer ordered the government to file a memorandum explaining the relevance of the information to the Al-Aulaqi v Panetta litigation. Sim-ilarly, the government’s brief in another FOIA case on appeal in the Second district grapples with the implications of the President’s acknowledgement of drone strikes.165 In addition to influencing this suit, I predict a new round of FOIA requests for the fuller version of the Presidential Policy Guidelines and other details referenced during the May activities. And the back and forth will con-tinue. Conclusion When the executive branch began deploying drones to engage in targeted killings, the public knew virtually nothing about these activities or how or whether they fit within the IHL framework. In the early stages of the war on terror, both the public and Congress accepted the executive branch’s behavior with few questions. But as the number of strikes and fatalities began to mount, calls for transparency and accountability grew louder. The American people wanted assurances that the executive branch was acting consistent with the Constitution and to a lesser extent consistent with IHL. Journalists and civil rights groups used litigation as part of a larger strategy to force transparency and accountability. Some lawsuits seek a ruling that targeted killings outside of Afghanistan are not part of an armed conflict, while others attempt to force the government to relinquish documents under FOIA. Others threaten to authorize courts to deny listings or provide damages. The evocation of courts in these various ways plays an important role in encouraging greater accountability and transparency. With each FOIA request or damage suit filed, concerned parties can keep public and congressional attention focused on targeted killings. With each denial, they can push back against the lack of transparency and accountability, forcing the executive branch to recalibrate its response. Given the historically limited role of U.S. courts in the interpretation and application of IHL norms, this ongoing role of the courts is a modest but important one. As shown here, the executivebranchhas in fact become more responsive. This approach of speeches, leaks, and information about oversight and reforms does mark a step forward. But ultimately, while advocates are using courts to highlight questions about the proper application of IHL, judges themselves seem reluctant to directly apply IHL norms in this area and the future prospect for such rulings seem quite dim.166