Justice Stevens and Targeted Killings — Then and Now

In his time on the Supreme Court bench, Justice John Paul Stevens played an critically important role in re-defining the Supreme Court’s view of the President’s wartime powers.  I am no great fan of this, obviously; but setting aside his success in overturning important precedents, his work was rather fascinating in the context of his biography.

As others have explained, Justice Stevens’s decision in Rasul v. Bush, brought his career full circle.  In granting Guantanamo detainees a statutory right to file habeas petitions in federal court, Justice Stevens overturned an old Supreme Court precedent, Ahrens v. Clark.  More specifically, Stevens’s opinion adopted a dissent that his old boss, Judge Wiley Rutledge, had submitted in that decision — a dissent written by none other than Rutledge’s clerk, young John Paul Stevens.

For similar literary reasons, it’s almost (almost!) a pity that Stevens is no longer on the Court to hear cases regarding the U.S. military’s targeted killing of al Qaeda terrorists (including an American member of al Qaeda, Anwar al Awlaki).  In this debate, much has been made of a America’s history in targeting and killing foreign military leaders — in particular, “Operation Vengance,” which killed Japan’s Admiral Isoroku Yamamoto, an architect of the Pearl Harbor attacks.  (For some of that discussion, see here, here, and here.)

Here’s the catch: America’s successful takedown of Yamamoto was based in part on the intelligence work of a young Naval officer … John Paul Stevens.  Stevens’s has mentioned this elsewhere, but he also refers to this episode — ruefully — in his new book, Five Chiefs.

And his new book is not the first occasion for him to criticize America’s killing of Yamamoto.  In a 2007 article, Jeffrey Rosen reported Stevens’s qualms with targeted killings:

Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.”

Stevens went on to say that this experience ultimately intensified his opposition to the death penalty. It’s no stretch to assume that it would have led him to urge his Supreme Court colleagues to push back against the President’s military program.

All the more reason for relief that he retired when he did.  Still, an amusing coincidence of history.