The Magical Due Process Incantation, Take Two

And you thought I was joking yesterday when I said that some people who object to the Obama Administration’s targeted killing program seem to think “due process” is a magical cure for everything that’s wrong with drone strikes and the so-called war on terror. As if to prove my point, this happened yesterday at the confirmation hearing for John Brennan, Pres. Obama’s nominee for CIA director (via Huffington Post):

WASHINGTON – Maine independent Sen. Angus King floated the idea Thursday of creating a court to weigh in on America's drone death program – an idea that CIA nominee John Brennan said the agency has “wrestled with,” but did not embrace.

…

“If you’re planning a strike over days week or months, there is an opportunity to go to some outside of the executive branch body, like the FISA court, in a confidential and top-secret way, and make the case that this American citizen is an enemy combatant,” King said. “At least that would be some check on the activities of the executive.”

FISA, of course, is the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801 – 1885, which sets up a procedure for bare-bones judicial review of domestic surveillance targeting foreign governments, agents of foreign governments, and alleged terrorists. Or at least it used to provide for judicial review, before Congress added Section 1802, which allows electronic surveillance without a court order in certain circumstances.

But I digress. FISA does provide some minimal judicial safeguards against government intrusions, requiring, for example, the government to apply to a court for approval of electronic surveillance in most cases. 50 U.S.C. § 1804. Note, however, that the FISA court is obligated to approve the application if the Department of Justice has jumped through all the right procedural hoops (including certifying the reasons why the government is seeking the information under Section 1804(a)(6)), and the judge finds:

[T]here is probable cause to believe that—

(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power …

50 U.S.C. § 1805(a)(2). There are certain “minimization procedures” the government is required to put into place under Section 1801(h); and Section 1805(a)(4) provides some additional protection if the target of surveillance is a “United States person”: The court must find that the government’s certifications as to the supporting facts “are not clearly erroneous.”

Nonetheless, to say that the process is highly solicitous of the government would be a gross understatement. FISA proceedings are largely conducted in secret; the target of surveillance doesn’t know that the government is applying for an order approving it, nor, if the surveillance is carried out properly, does the target know he or she is being surveilled. Ordinarily, the only time the target of surveillance receives notice that it’s occurred is when the government elects to use the information it obtained as evidence in a subsequent legal proceeding. See 50 U.S.C. § 1806(c).

Apparently, this is the kind of “due process” Sen. King envisions in cases where the government seeks authority to kill Americans working for al Qaeda: An essentially secret proceeding with no notice to the target, a very low bar in terms of the government’s burden of proof, and no way for the target to present his or her case. But it’s some process, albeit far less than what we’d ordinarily call due process; and that’s enough, I guess, to sanctify drone attacks in Pakistan or Yemen, or, you know, wherever.

Again, though, Sen. King’s proposal, if you can call it that, highlights the point I made yesterday. I understand why Americans are obsessed with due process as a general principle. But merely requiring the government to dot its procedural i’s and cross its procedural t’s so a judge can rubber-stamp its request to strafe a civilian neighborhood in a country we’re not actually at war with … well, that right there is some cold comfort, my friends.