The Due Process Shibboleth

A few weeks back, I joked that this was turning into a Second Amendment blog. Now, I risk turning it into an all-drones-all-the-time blog. So, unless something changes in the near future, I hope this will be my last post on the subject for awhile. (If you’re just joining us, I wrote about drones and targeted killing twice already this week, here and here.)

In any event, let’s take a deep breath and delve into it one more time. Unless you live in a cave in Tora Bora, you probably know that earlier this week NBC News got its hands on a Department of Justice memorandum that purports to set out the justification for killing Americans abroad whom the government believes to be “senior operational leader[s]” of al Qaeda or an affiliated group, and who are “actively engaged in planning operations to kill Americans.” In response, the most common objection you’ll hear ricocheting around the interwebs is this: Egad! The President claims to have the authority to kill Americans without due process!

I’m not going to go through the reasons why I think the due process/civil liberties framework is inapt here. I’ve done that before, at least twice, and people are either going to accept my argument or reject it. But I do think it’s worth pointing out that the due process/civil liberties argument assumes something I don’t think most of its proponents have given much thought to. The President’s liberal critics (and some conservatives, too) seem to think that by invoking due process they can make drone problem magically disappear. Instead, what they’re really saying is, if you give Americans abroad some form of due process, then targeted killings are a-okay.

In other words, if the problem is a lack of due process, rather than, as I’ve suggested, an utterly absurd “war” that exists altogether outside the normal laws of warfare, then the President can cure the problem simply by affording proposed targets their due process rights. So let’s talk about what that means. The term “due process” generally refers to this: When the government wants to take action against an individual, or when a private party wants to bring the government’s power to bear against an individual, that individual is entitled to reasonable notice and an opportunity to be heard.

In the criminal context, “reasonable notice” usually comes in the form of an indictment, an arrest, and an arraignment where the charges are explained in detail, at which time the defendant has the opportunity to enter a plea. In the civil context, “reasonable notice” comes in the form of a written complaint detailing the allegations against the defendant, which is served by an appropriate agent along with a summons, through which the court obtains personal jurisdiction over the defendant.

The “opportunity to be heard” component of due process is more complex. In the criminal context that envelops all the rights contained in the Fifth and Sixth Amendments – the right to counsel, the right against self incrimination, the right to a speedy trial, the right to confront witnesses, the right to be tried by an impartial jury, the right to have his or her guilt proven beyond a reasonable doubt. In civil cases, a party has fewer rights; but let’s assume, for the sake of argument, that the “due process” rights we’re talking about here are those that would obtain in a criminal case.

So, the question becomes: What would due process look like in a case where the government sough to target an American in Afghanistan, Pakistan, or Yemen who’s accused of working for al Qaeda. It’s not too difficult to imagine a procedure whereby the President could apply to a court for an order permitting him to carry out a targeted killing, with some form of notice to the target, who would then have all the usual Fifth and Sixth Amendment rights (to counsel, against self incrimination, to a jury, to speedy trial, to confront witnesses, and so forth). That individual could come to the United States to defend him or herself, or that individual could stay abroad; but either way, the government would have to prove its case beyond a reasonable doubt.

Let’s say the government jumps through those hoops, and the court then enters an order allowing the targeted killing to take place. So the President orders a drone strike in, I don’t know, a residential neighborhood in Pakistan or Yemen. The strike kills the American, a few other al Qaeda operatives … and two dozen innocent civilians.

But hey, at least the American’s due process rights were protected.

Sigh.

Okay, so, maybe, the government would lose a case here and there, and in those instances there would be no drone strikes. Can you guarantee that will happen in every case? Of course not. Which is my point: Invoking due process isn’t some magical spell that will stop the use of drones and the collateral damage they cause.

Of course, if we ended this inane “war on terror” altogether, there would be no drone strikes. And then we wouldn’t have to worry about the efficacy of the magic due process incantation.