Where the paradigm of war applies, the executive dominates in deciding who lives or dies. Justice O’Connor nonetheless claimed in Hamdi (案件名称) that the war on terror does not give the executive a blank check (自由处理权) to do as it pleases in the name of security. If one accepts this premise, then the question becomes how to control the executive’s war power without unduly hampering it. Under a Mathews-style approach, to determine whether due process demands a particular procedural control over targeted killing (ARA), one should: (a) identify the range of legitimate interests that the procedure might protect; (b) assess the degree to which adoption of the procedure actually would protect these interests; and (c) weigh these marginal benefits against the damage the procedure may cause other legitimate interests.
Judicial control of targeted killing could increase the accuracy of target selection, reducing the danger of mistaken or illegal destruction of lives, limbs, and property. Independent judges who double-check targeting decisions could catch errors and cause executive officials to avoid making them in the first place.
More broadly, judicial control of targeted killing could serve the interests of all people --- targets and non-targets — in blocking the executive from exercising an unaccountable, secret power to kill. If possible, we should avoid a world in which the CIA or other executive officials have unbelievable power to decide who gets to live and who dies in the name of a shadow war that might never end. Everyone has a cognizable interest in stopping a slide into tyranny.
