I wrote a controversial blog on Saturday entitled "We Do Not Assassinate Americans," arguing that the targeted assassination of Anwar al-Awlaki, an American radical cleric who was killed by a U.S. drone strike on Friday, was a violation of the Due Process Clause of the Fifth Amendment. Would the naysayers of Saturday feel any differently if al-Awlaki had been on American soil? Maybe the NIMBY factor made this a little more comfortable.
It speaks volumes that former vice president Dick Cheney called the drone strike a validation of the Bush administration's terrorist-fighting strategy (and said that Obama should apologize for his past criticism of those policies.) Jack Goldsmith, former head of the Bush Justice Department's Office of Legal Counsel, called it "admirable."
That ought to give us some pause.
Remember when John Adams defended British soldiers who walked into a square and fired on American colonists during the Boston Massacre? Under today's standards, this would certainly be considered an "act of war."
Everyone clamored for the British soldiers' death. John Adams defended them (notably, they were not even U.S. citizens), and this was a pinnacle for the American court system. It was part of the proof to the world that America could be a fair country on its own.
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."
There is no legally-recognized concept as "due process in war," which apparently means no process at all. (One-sided secret groupthink by top agency lawyers doesn't count.) Rather, there is supposed to be a balancing test, which--from detaining U.S. citizens as "enemy combatants" to the lethal targeting of Americans suspected of terrorism--has been precariously lopsided.
Goldsmith argues that
[T]here is an extraordinary process inside the government to ensure that this standard is met . . . Top lawyers from many agencies scrutinize the action [and] policy makers at the highest levels of government approve the action after assessing its legal and political risks.
That's not what the Supreme Court recognizes as due process. While the Court has recognized that procedural "due process is flexible and calls for such procedural protections as the particular situation demands," it surely didn't mean that eliminating any and all process because we are in an unprecedented and unique "war" of indeterminate duration suffices. The President's war powers should not be more potent than the Fifth Amendment.
Goldsmith concedes that
these internal targeting procedures gave Mr. Awlaki less due process that he would have received from a court. And these procedures are no guarantee against mistakes. . . [But] they exceed anything the law requires.
What law is he referring to?? If any question of liability be conclusively presumed against a suspect, this is not due process of law. Due process does not mean a bunch of political appointees making a secret decision; rather, it means the right of the person affected (Awlaki) to have a say before the government pronounces judgment upon the question of life.
This is a fortiori in the case of the second American killed in the drone strike, Samir Khan. He was the driving force behind Inspire, the English-language magazine produced by al-Qaeda--something clearly protected by the First Amendment. It wasn't creating an imminent threat.
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--which is why the organization for which I work (the Government Accountability Project) has filed a Freedom of Information Act request for the memo.