Archive for February 10, 2013

Mistaking Absolutism for Principle, II

February 10, 2013 Leave a comment
Magna Carta, from the Bodleian Library at Oxford University

Magna Carta, from the Bodleian Library at Oxford University

Mistaking Absolutism for Principle: Due Process Travesty

Three days ago, I retired my Change We Can Believe In series in recognition that President Obama had begun his second term and it was time to move on. In its place, I began this new series, which takes its name from Obama’s assertion that “we cannot mistake absolutism for principle” in his second inaugural address.

The first post of this series dealt with the latest news on the Obama administration’s use of drones to kill U.S. citizens in non-war zones abroad, the newly released Department of Justice White Paper that purports to offer a legal framework for this practice. The principal finding of the white paper was described by Charlie Savage and Scott Shane in their NYT coverage last week:

Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible.


It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.

Recall Obama’s most publicized use of this authority, his approval of the killing of U.S. citizen Anwar al-Awlaki in Yemen two Septembers ago. On Friday, Harvard law professor Noah Feldman wrote about what he finds most troubling in the white paper: the travesty it makes of due process. I turn the rest of this post over to him. (The added emphasis is mine.)

The biggest problem with the recently disclosed Obama administration white paper defending the drone killing of radical clerk Anwar al-Awlaki isn’t its secrecy or its creative redefinition of the words “imminent threat.” It is the revolutionary and shocking transformation of the meaning of due process. … Due process is the oldest and most essential component of the rule of law. It goes back to the Magna Carta, when the barons insisted that King John agree not to kill anyone or take property without following legal procedures.

What they meant — and what has been considered the essence of due process since — is that the accused must be notified of the charges against him and have the opportunity to have his case heard by an impartial decision maker. If you get due process, you can’t complain about the punishment that follows. If you don’t get that opportunity, you’ve been the victim of arbitrary power.

Are U.S. enemies entitled to due process? Well, no — not if they are arrayed against the country on the battlefield. In war, you don’t try the enemy. You kill him, preferably before he kills you. And if some of the Japanese troops at Guadalcanal had held U.S. citizenship, it wouldn’t have suddenly given them due process rights. If Awlaki was an enemy fighting on the battlefield, he wouldn’t have deserved due process while the fight was on. Off it, he should legally be like any other U.S. citizen, innocent until proven guilty.

Yet, despite claiming that the Awlaki killing was justified because he was an operational leader of al-Qaeda, and thus in some sense an enemy on the battlefield, the white paper still assumes that due process applies to U.S. citizens abroad who adhere to the enemy. On the surface, this sounds plausible and even generous: Why not consider the possibility that a U.S. citizen abroad has some rights against being killed out of the blue?

In fact, though, applying due process analysis to Awlaki produces a legal disaster. The problem is, once you consider due process, you have to give it some meaning — and the meaning you choose will cast a long shadow over what the term means everywhere else.


Astonishingly, the white paper follows its summary of these decisions with the bald assertion that a citizen outside U.S. territory can be killed if a high-level official determines that he poses an imminent threat, it would be unfeasible to capture him and the laws of war would otherwise permit the killing.

The non sequitur is breathtaking. Awlaki wouldn’t receive notice, the opportunity to be heard or a hearing before a decision maker. In other words, he would receive none of the components of traditional due process — not even one. How the absence of due process could be magically transformed into its satisfaction is never stated or explained.


The Obama administration’s apparent belief that due process can be satisfied in secret internal inside the executive branch is arguably a greater departure from precedent. It is a travesty of the very notion of due process. And to borrow a phrase from Justice Robert Jackson, it will now lie about like a loaded weapon ready for the hand of any administration that needs it.

The white paper should have said that due process doesn’t apply on the battlefield. By instead making due process into a rubber stamp, the administration is ignoring precedent and subverting the idea of the rule of law. When is some law worse than none? When that law is so watered down that it loses the meaning it has had for 800 years.

Categories: Law

Blood-Dark Track

February 10, 2013 Leave a comment


Having finished What It Takes: The Way to the White House, Richard Ben Cramer’s account of the 1988 presidential election, yesterday and written about it last night, I was ready for my next book. The lead review in the Sunday NYT book review today is Joy Williams’ look at Karen Russell’s new short story collection, Vampires in the Lemon Grove. Reading it online Friday, I was prompted yet again to consider reading Russell’s acclaimed 2011 novel Swamplandia! But what really got my attention was Williams’ description of Russell’s first book, “that extraordinary debut collection, “St. Lucy’s Home for Girls Raised by Wolves” — 10 astonishments inimitable in style and execution.”

I added St. Lucy’s to my reading list, downloaded the free opening section, read a page or two, then turned instead to another book, Joseph O’Neill’s Blood-Dark Track: A Family History. It appeared initially in 2001. When O’Neill’s novel Netherland became such a success in 2008, it was reissued. I loved Netherland, but wasn’t prompted to read Blood-Dark Track at the time. Perhaps it wasn’t even available. Last week, having seen a reference to Netherland somewhere, I looked up O’Neill and was reminded of Blood-Dark Track. Now I’m reading it.

What’s it about? In his February 2002 NYT review, Colin Harrison summarized:

How few of us truly know our grandfathers. Even if our lives overlap, even if they are geographically proximate, the men who fathered our parents are often depleted or ill by the time we may question them. Their struggles are decades past, their money and marriages made or lost, their paths long taken. And if by chance they remain vigorous, the particulars of their lives — their secrets — are not necessarily for the sharing.

Joseph O’Neill faced an especially tantalizing impasse. As a boy, he became aware that his Turkish grandfather, Joseph Dakad, had been imprisoned in Palestine during World War II. ”A shiver of an explanation accompanied this information,” O’Neill writes; ”the detention had something to do with spying for the Germans.” He also learned that his Irish grandfather, James O’Neill, had been jailed in Ireland during the same war, a member of the Irish Republican Army. But in neither case were more details forthcoming. O’Neill’s parents rarely discussed the men whose names he shared.

”Blood-Dark Track” is O’Neill’s reconstruction of the lives of his grandfathers, what he calls ”a slow, idiotic awakening” that for the reader is anything but. Rather, the book is an enormously intelligent plunge into the World War II era that involves, among other elements, an unsolved 65-year-old murder, a rusted pistol, clandestine train travel and assignations in the dark. O’Neill, who is the author of two novels, adeptly makes scene and character where otherwise there might be only chronology, but he also draws on his experience as a lawyer for insight into the Realpolitik of armies, embassies, prisons and families — or anywhere else men and power inevitably collide.

I’m only about 20 pages in, so I have nothing to add, other than seconding Harrison’s statement about not knowing our grandfathers. One of mine, a colorful figure, was born in Chelm (in Poland), moved to New York, made and lost lots of money, lost family as well (to the Holocaust), and died just after I turned three. The other, also arriving in New York from Eastern Europe, remarried shortly after my grandmother’s death—when my father was young—and ultimately moved to Florida. I saw him only a handful of times prior to his own death during my senior year in high school. I couldn’t write a book as interesting as O’Neill’s, but I’m confident that there’s material for one.

Blood-Dark Track also received a 2002 review in the New York Review of Books, where Fintan O’Toole wrote:

Joseph O’Neill is the epitome of cosmopolitanism, about as far from the ferocious demands of blood, soil, and ethnicity as it seems possible to go. He was born in Cork in the south of Ireland in 1964, and regards himself as Irish. Though his father is from Cork, however, his mother came from the Syrian Christian minority in the Turkish port of Mersin. O’Neill’s father was a project manager for international construction companies, so Joseph spent his early childhood traveling through Africa and Asia, and then grew up in The Hague. He spoke Dutch on the street, French at home, and English as one of the multinational group of students at the city’s British school. He now lives in London, speaks with an English accent, and works as a business lawyer and novelist. If anyone can be said to have escaped from history, it is him.

This very removal, perhaps, prompted him at the age of thirty in 1994 to intrude on what he calls “the jurisdiction of parental silence.” He had been told that both of his grandfathers, Joseph Dakad in Turkey and James O’Neill in Ireland, had spent much of World War II in prison camps. Dakad, a well-to-do hotelier, was arrested by the British on a business trip to Palestine and interned on suspicion of spying for the Germans. O’Neill, a member of the IRA, which allied itself with the Nazis and mounted a bombing campaign in England, was interned by the Irish government. In the face of his family’s reluctance to discuss these events, he decided to investigate. Blood-Dark Track is a record of this journey into the past. What makes it fascinating is the honesty with which O’Neill confronts the powerful attraction of an unyielding political fanaticism even for a rational, sophisticated, deracinated man like himself.

I’m looking forward to learning more.

Categories: Books, History