Fordham Law

Constitutional Experts Take Aim at Targeted Killing Program

September 26, 2012

One year ago on September 30, U.S. citizen Anwar al-Aulaqi was killed in Yemen in a drone strike authorized by President Obama. These targeted killings have increased during the president’s term, and they have forced scholars and government officials alike to confront challenging questions about constitutional and international law and the limits of executive power.

On September 24, Fordham Law hosted a debate that addressed these timely issues. The event, “Executive Power and Civil Liberties: Debating Obama’s Target Killing Program,” drew 245 people to the Law School’s McNally Amphitheatre and featured two leading constitutional law experts, Fordham Law Professor Martin S. Flaherty and Harvard Law Professor Jack Goldsmith. Another distinguished expert in constitutional law, William M. Treanor, moderated the debate.
Martin S. Flaherty and Jack Goldsmith

Flaherty and Goldsmith discussed the legality and wisdom of the Obama administration’s counterterrorism policies, including the targeted killing of suspected terrorists who are U.S. citizens and who are outside of active, or “hot,” battlefields.

“The war paradigm used to be that states fought states, and you didn’t have to pick out individuals,” said Goldsmith. “But now we’re not fighting against states. We’re fighting against non-state actor groups. We’re in armed conflict with transnational terrorist groups.” Battling these groups, Goldsmith explained, is settled in U.S. law but not in international law.

Goldsmith argued that the use of drones and individuated killing should be considered a humanitarian victory, as they minimize civilian casualties. Flaherty agreed that targeted killings are permissible in broad strokes but cited constraints in terms of domestic and international law, democratic first principles, and transparency.

“The problem is we—as a democratic self-governing people—don’t know enough to make intelligent decisions about the balance between security payoff and violation of individuals’ rights,” said Flaherty. “We need to know more about this.”

Flaherty is the Leitner Family Professor of International Human Rights Law. He also is a Founding Co-Director of the Leitner Center for International Law and Justice and a Visiting Professor at Princeton University’s Woodrow Wilson School of Public and International Affairs. Goldsmith is the Henry L. Shattuck Professor of Law at Harvard. A noted author, his books include Power and Constraint: The Accountable Presidency after 9/11 and The Terror Presidency: Law and Judgment Inside the Bush Administration. Treanor served as Fordham Law Dean from 2002 to 2010 and was a professor at the School beginning in 1991. He currently serves as Executive Vice President and Dean of the Law Center and Professor of Law at Georgetown University.

The event was conceived and funded by Fordham Law alumna Margaret “Peggy” Hill.
Margaret "Peggy" Hill, Martin S. Flaherty, William M. Treanor, and Jack Goldsmith

Contact: Stephen Eichinger