I have to be honest—I don’t actually know the criteria for being classified as naughty or nice by Santa.  I also don’t know how I would find out.  I do know that he flies around the world giving out “incentives” once a year.

…It turns out that the Obama Administration is stealing a page from Santa’s playbook and, in good American fashion, MAKING IT YEAR-ROUND.

The big news this week is the new revelation of a policy paper (i.e., “white paper”) that (sort of) discusses the justification for killing American citizens who are deemed to be high level officials in Al Qaeda and affiliated groups.  There are many problems and dilemmas in this hornet’s nest, and (surprise!) I am not a fan of the policy.  (And, to be absolutely clear, I have yet to hear even an imaginably compelling argument for why the justification for the policy should be kept secret.) However, I will focus on one of these dilemmas, jointly contained within the reasoning of the policy paper and the Obama Administration’s policy that the kill list be kept secret.

In a nutshell, white paper argues that an American citizen’s due process rights (c.f. the 4th and 5th Amendments of the US Constitution) are counter-weighed by the collective security interests of society when 3 criteria are satisfied:

1. An informed, high-level official of the U.S. government has determined that the targeted individual poses and imminent threat of violent attack against the United States;
2. A capture operation would be infeasible and those conducting the operation continue to monitor whether capture becomes feasible; and
3. The operation (i.e., killing the individual) is conducted consistent with applicable law of war principles.  (In this context, this basically means you must accept a surrender by the target if offered and you shouldn’t obliterate a whole village of innocents to eliminate the target.)

Some have focused on the memo’s somewhat tortured (re)definition of the word “imminent” in justifying why it is legitimate to kill someone who, in theory, could be (temporally) intercepted prior to the actual event.  I don’t have a problem with this definition for a number of reasons.  Like obscenity, I think imminence is something that you know when you see it (or, perhaps, right before you “saw it”).  We wouldn’t ask a law enforcement official to wait to shoot a suspect until the suspect’s finger was actually pulling the trigger, would we?  Of course, we wouldn’t countenance that officer shooting someone just because the suspect has a gun in his or her car. It’s a classic example of the type of gray area that is referred to as residual discretion and my coauthor and co-conspirator Sean Gailmard and I have argued that interpreting how best to use such discretion is generally best left in the hands of the individual tasked with its use.

Setting that important point to the side, however, I believe in this case that an even more important point is the conflict between the definition of imminence and the secrecy of the kill list.

A sine qua non of due process is notification of charges and the ability to challenge their validity.  From a practical standpoint, due process is designed to correct errors.  From a normative standpoint, due process is designed to prevent irreversible errors. Both motivations apply in this case.

The starting premises of the policy paper are

1. an official has made an official determination that
   1. the suspect is a high-ranking official of Al Qaeda and
   2. capture of the suspect is infeasible.

Suppose now that the suspect’s name is included on a public list (much like the “most wanted list”).  Two things happen simultaneously:

1. the suspect (in theory, which is what matters) knows that he or she must turn themselves in to avoid possibly being blown up by a drone, and
2. other individuals know the same thing.

The first point (which is another instance of a take-it-or-leave-it bargaining game: turn yourself in or we’ll blow you up) is relevant for due process: it is the basis of “being served” a subpoena (“under penalty”).  Put another way, how do we know that we are truly incapable of capturing the suspect until we at least theoretically give him or her the chance to surrender?

Claims that publishing such a list might expose our intelligence methods, make the suspect go into hiding, etc., miss the mark.  In addition to the direct ex post (corrective) effects discussed above, due process requirements are socially beneficial precisely because they are costly—knowledge that these requirements must be satisfied force the agents of the government (who, for example, can face individual liability when they circumvent such requirements) to take greater care in collecting and analyzing evidence.  Put another way, this type of argument boils down to the claim that due process requirements help criminals get away with it.  Accordingly, think for a second about setting aside the right to appeal in capital cases.  The difference is only one of degree.

Similarly, responding that “the suspect should know that he or she has this opportunity because they are actively engaged in open conflict with the US” has no purchase in refuting this, because either

1. the suspect knows that the US government knows this, in which case there is no harm in informing the suspect that he or she has “one last chance” to surrender, or
2. the suspect does not know the US government knows this, in which case the due process concerns are relevant, because this opens the possibility that the “informed, high-ranking official’s” determination is incorrect.

The second point (informing others about the inclusion of the suspect on “the list”) clearly has good impacts in various ways: maybe somebody will turn the suspect in for a reward, maybe it will make other neutral or enemy individuals less interested in hanging out/collaborating with the suspect (i.e., “drone magnet”), etc.

A final point is in order here: a grander concept of due process, extending beyond the potential salubrious informational and welfare impacts of process, is that of being governed by laws and not individuals.  This policy, particularly given the claims that the basis of the policy must and should be kept secret, is directly and incontrovertibly at odds with this concept.

Neither conspiracy theories nor quasi-paranoid slippery slope arguments are required to justify thinking this is a big deal.  In a very important way that seems circular because it encompasses both signaling and coordination games, transparency is important because it is important.  Claiming the authority to withhold the legal justification of a government policy is a clear transgression of a basic principle of democratic governance.  Politicians of both parties have done it, and each and every one of those politicians should be ashamed.

With that, I leave you with this.