Here's what my son just learned in 7th grade civics:
The Due Process Clause of the Fifth Amendment is in many ways the backbone of the rights guaranteed by the Constitution. Due process is the simple notion that the Constitution requires governmental procedures to be fundamentally fair before a person may "be deprived of life, liberty or property."
The Obama administration's "justification" for the targeted assassination of Anwar al-Aulaqi--an American radical cleric who was killed by a U.S. drone strike yesterday--is that "What constitutes due process in this case is a due process in war," which is apparently no process at all.
If any presidential administration is going to commit controversial, and by all standards I can find, illegal, acts (like the targeted killing of an American citizen outside the United States who is suspected of terrorism), then it should be forced to articulate publicly its rationale, not hide behind some secret memo--that's so George W. Bush.
Under the Bush administration, and now the Obama administration, the due process guarantee is losing force as it has historically in times of national security crises.
"Due process in war" means no due process. Once again, anonymous government officials roll out the meme that governmental excesses are reasonable and necessary during times of war.
How's that been working for us? During World War I, the government imprisoned people for years for speaking out against the war effort. During World War II, the infamous and shameful Korematsu case endorsed the internment of more than 110,000 persons based solely on their Japanese ancestry. During the Cold War thousands of innocent people lost their jobs, were the subject of congressional investigations, or were incarcerated for their association with the Communist Party.
And now, during the War on Terrorism, jettisoning due process by an order of magnitude, the president can order that any citizen outside the United States who is suspected of terrorism may be summarily assassinated. And the crime of the second American, Samir Khan, killed in yesterday's lethal targeting of al-Aulaqi? He was the driving force behind Inspire, the English-language magazine produced by al-Qaeda--something clearly protected by the First Amendment. That's why we protect the right of neo-Nazis to parade through Jewish communities. No matter how abhorrent the speech, it is protected.
While the Supreme Court has recognized that procedural "due process is flexible and calls for such procedural protections as the particular situation demands," eliminating any and all process because we are in an unprecedented and unique "war" of indeterminate duration is not the answer. The President's war powers should not be more potent than the Fifth Amendment.