While this feels like a "quis custodiet ipsos custodes"
situation, does the judicial overview always need to be prior the action?
In other words, consider soldiers on a battlefield. They do not need judicial approval to kill people they perceive to be enemies. However, they are not given a carte blanche to shoot anyone they wish, or use any means they wish. In cases of soldiers executing questionable judgement, there is a review after the fact.
Police officers are also given more leeway when it comes to killing people. I believe there is always some sort of review after the fact, but I don't think that investigation is the same as a court case (i.e. it may occur entirely within executive branch agencies.)
Therefore, so long as there is process (read: a paper trail) then the people involved in these assassination programs can undergo judicial review should their decisions be questioned, e.g. by whistleblowers, when the documents are declassified, or if a review is mandated by congress.
One difficulty comes with the definition of battlefield and war. If a battle makes it ok, what does that say about a war on terror, which appears to be perpetual?
> Therefore, so long as there is process (read: a paper trail) then the people involved in these assassination programs can undergo judicial review should their decisions be questioned, e.g. by whistleblowers, when the documents are declassified, or if a review is mandated by congress.
Another issue comes with the types of review. Whistleblowers are illegal and increasingly shut down. Declassification takes ages, and a Congressional review may never happen. When people talk about due process, they usually mean a process that will always happen, not one that is optional.
Those are only a few examples of ways that people involved might be prosecuted. Here are some more: The friends/family of an assassinated person could probably claim wrongful death and cause an investigation. Non-government organizations (e.g. the ACLU) could sue for a review.
In any case, the threat of legal repercussions exists, and is likely enough to prevent US citizens from being assassinated arbitrarily.
In other words, consider soldiers on a battlefield. They do not need judicial approval to kill people they perceive to be enemies. However, they are not given a carte blanche to shoot anyone they wish, or use any means they wish. In cases of soldiers executing questionable judgement, there is a review after the fact.
Police officers are also given more leeway when it comes to killing people. I believe there is always some sort of review after the fact, but I don't think that investigation is the same as a court case (i.e. it may occur entirely within executive branch agencies.)
Therefore, so long as there is process (read: a paper trail) then the people involved in these assassination programs can undergo judicial review should their decisions be questioned, e.g. by whistleblowers, when the documents are declassified, or if a review is mandated by congress.