“Due Process *of Law*” Dep’t

OK, I didn’t go to law school, but I get the point that legal language doesn’t mean what it says; it only means what the cases say it says.

And I’m persuaded by the argument that the web of Islamist terrorist groups attacking the U.S. resemble a wartime enemy more than they resemble a set of ordinary criminal conspiracies, and that therefore their members can be attacked as enemies rather than tried as criminals. You don’t need a court order to fight a battle.

But the Constitution still provides that “no person shall be … deprived of life, liberty, or property without due process of law.” When the Attorney General says that a mere secret executive branch decision, arrived at under unknown procedures, and of which certain selected Members of Congress are retrospectively notified, constitutes “due process,” it seems to me he’s left out the “of law” part.

At the bare minimum, there ought to be a set of officials – though I’d prefer that the group not consist only of those who serve at the pleasure of the President – making some sort of formal finding after some sort of formal hearing, with at least one official (might be a career JAG officer) charged with the responsibility for arguing against the designation, and given full access for that purpose to any and all information in the government’s possession.

Now maybe what I’ve described is close to the actual process. But it’s still not, to my non-legal eye, “due process of law” unless the process itself is explicitly authorized, either by Executive Order or (better) by statute, and that authorization, with the relevant procedures, is made public.

Do I trust the Obama Administration not to kill anyone who isn’t actually an enemy threatening deadly violence? Modulo the risk of error, yes. I’m willing to believe that Anwar al-Awlaki got what he asked for. But that’s not the test. The test is whether the office of President contains within itself the unreviewable power to order American citizens killed, and, therefore, that if Dick Cheney had persuaded George W. Bush that some American Wikileaks supporter was a member of a “fifth column,” – or if his Minister of Spiritual Warfare persuaded President Santorum that some Unitarian was in league with Satan in his war against American institutions – that would make it lawful to send in the drones.

The Constitution does provide for the case of an American citizen who levies war on the United States, or adheres to their enemies. That’s the definition of treason. And the Constitution provides that a conviction of treason requires the testimony of two witnesses, or confession in open court. Now that’s “due process of law.” The Attorney General’s version is, at best, a due-process-of-law-flavored drink mix.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.