The military takes orders from the civilian government. But it’s a military operation at the end of the day, involving targeting decisions in a theater of war. Just because civilian officials dictate that targeting doesn’t change its military nature.
The requested discovery sought information about how targeting decisions were made for military strikes overseas. I see the argument for why, when a US citizen is involved, there might be a due process issue. But there is undeniably a huge state military interest in secrecy.
As practiced in the developed world, the rule of law does not encompass courts second-guessing military decisions overseas. Courts are primarily domestic and civilian by their nature. The Supreme Court has found that certain due process issues are implicated where US citizens are involved even with respect to conduct overseas. But there is a tension there with the legitimate prerogatives of the executive with respect to military action.
I’m curious whether any other developed country releases that sort of targeting information. To me knowledge, US courts are already more willing to intrude into military action abroad than courts in other countries.
You're equivocating now between the executive's power to conduct warfare, and an evidentiary rule that allows them to escape discovery. The nonjudiciable issues in this case were already dismissed.
No other developed country has a kill/kidnap database as large as ours. The US also has a bill of rights which does not depend on the rights respected in other countries across the world.
I'm not "equivocating" I'm pointing out the two things are necessarily related. The executive's primacy in making decisions about military strikes on a foreign battlefield may involve civilian decisions made in the U.S. But evidentiary privileges exist to protect those civilian decisions, because disclosure could undermine the military effort. The plaintiff is asking the government to disclose how it selects the people it chooses to attack on the battlefield. There is a clear military interest in not disclosing that. It may be the case that the military interest doesn't outweigh the interest in allowing civilian litigation to proceed. But it's an entirely legitimate think for the government to try and protect that decision making process from public scrutiny.
The Constitution describes a separation of powers. The executive has primacy when it comes to waging war. Courts have primacy in protecting the rights of individuals domestically. The Supreme Court has held that U.S. citizens outside the territorial jurisdiction of the U.S. have certain constitutional protections, which can be adjudicated by U.S. courts. That puts those spheres of power into conflict. On one hand, courts generally don't get to second-guess the military's targeting decisions. On the other hand, if a U.S. citizen alleges that the military is targeting strikes in a battlefield in an effort to kill him, that's exactly what the court has to do.
Other developed countries also distinguish executive from judicial power, and domestic from foreign theaters. How they address this tension is illuminating, I think.
The privilege is based on it being in the public interest for information to be withheld -- that its disclosure would threaten the nation's security, not that it would threaten the executive branch's authority or ability to do its job. It being none of the courts' business, and the exposure threatening national security, are two different arguments.
Other forms of executive privilege that protect autonomy are easier to invoke, and easier to challenge. State secrets privilege cannot be used lightly. It's used all the time now, and there is reason to be suspicious that it is used fraudulently.
The courts really need to figure out a way to in principal allow US citizens bring a case in situations like this. You have to prove now, in essence, that your name is on an invisible piece of paper. I agree that the nomination procedure is extremely sensitive, but I think there is some room on the yes/no presence of someone on the kill list, given other supporting evidence. The danger is that we reveal to someone that we're trying to kill them -- but again, we're talking about a citizen, and if they have supporting evidence and are in court then they already suspect that.
The requested discovery sought information about how targeting decisions were made for military strikes overseas. I see the argument for why, when a US citizen is involved, there might be a due process issue. But there is undeniably a huge state military interest in secrecy.
As practiced in the developed world, the rule of law does not encompass courts second-guessing military decisions overseas. Courts are primarily domestic and civilian by their nature. The Supreme Court has found that certain due process issues are implicated where US citizens are involved even with respect to conduct overseas. But there is a tension there with the legitimate prerogatives of the executive with respect to military action.
I’m curious whether any other developed country releases that sort of targeting information. To me knowledge, US courts are already more willing to intrude into military action abroad than courts in other countries.