Due Process and Judicial Review of Government Kill Lists
Proposes a procedural experiment that would enable courts to review placements on kill lists while protecting the national security and separation-of-powers concerns that motivate the state-secrets privilege and the political question doctrine. Under this proposal, a court would protect state secrets by denying the plaintiff any access to them, and it would guard against violation of the political question doctrine by limiting its factual review to determination of whether the government has a reasonable basis for its placement decision. This limited form of review would, in the name of protecting national security, severely diminish fundamental due process requirements of notice and an opportunity to be heard. It would also, however, provide a role for a third core element of due process, a neutral decisionmaker.