Mistaking Absolutism for Principle, II
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.