“Due process *of law*” Dep’t

Eric Holder’s claim that an secret, undefined, unreviewable Executive Branch process for deciding which American citizens to kill constitutes “due process” doesn’t pass the giggle test.

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.




Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

34 thoughts on ““Due process *of law*” Dep’t”

  1. Another approach would be to strip the likes of Anwar al-Awlaki of their citizenship by legislation.
    That gets round the objection to executive murder of US citizens. However, most of the world’s population, including me, are not US citizens. I strongly object to the US Government’s claiming the right to kill me if it thinks I’m a threat, for instance by “associating with” al-Qaeda.

    1. The Constitution doesn’t allow citizenship to be revoked by legislation. It forbids bills of attainder, and it also provides that every person born or naturalized in the United States is a citizen.

      Yes, I can understand why you don’t like the idea of the U.S. government being able to single you out as a threat. But there are threats: people plotting to kill Americans. They don’t have armies or wear uniforms, but they’re enemies all the same. How would you propose to deal with them? If it’s lawful to wage war – killing conscripts and civilian “collateral damage” victims – then surely it’s lawful to kill terrorists, even if not currently under arms. The question is what process ought to apply.

      1. You could have some due-process procedure for determining that someone had de facto renounced their citizenship.

        Under the laws of war, and I’m agin you, I’m either an enemy combatant in an army or a national liberation movement (fair game for military action) or a civilian (not), and terrorists like the Provos are criminals to be arrested. Al-Qaeda managed to break this workable set of categories and get itself accepted as a war enemy instead. A mistake IMHO, but I agree that’s what happened.

        However, in ten years since 9/11, the USA has failed to come up with any half-way sensible and transparent definition of, or process for determining and publicising, such “war enemy” status, let alone a reasonable way of handling prisoners alleged to be such enemies. Greenwald has a point that the function of Terrorists is to be shadowy, hydra-headed Goldsteins, justifying an endless suspension of law for Star Chamber prerogative; though in reality the threat is far less than that posed by the Soviet Union and its proxies, who were contained and combated publicly within the law (with much hypocrisy on the covert CIA side). The USA has internalised the old Communist way of perceiving adversaries. Bin Laden is still triumphant in American heads.

        1. The courts have not spoken to this issue completely directly, but as I recall, the various cases on citizenship do not permit the US to declare people enemies and then “de facto” strip them of their citizenship. There has to be a defined and deliberate renunciation. Serving in the uniformed armed forces in a declared conflict against the US probably qualifies, but bombing the Oklahoma City federal building would probably not qualify.

      2. I do not believe it is acceptable to kill “terrorists” not currently under arms. The quotes are there because, in my experience, the word is used mainly for its connotations rather than any denotation (FWIW: my working definition is a person who actually attacks civilian people or infrastructure in order to instill fear in the populace)

        The reason for allowing the killing of enemy combatants *in combat* is that there is no reasonable alternative; the civil process of investigation, arrest, and trial by jury is not possible.

        However, when the accusation is “plotting”, “planning”, or “supporting”, (as in the case of al-Awlaki, as far as I can tell), assassination is absolutely wrong. In these cases, we have the ability and the obligation, to prosecute the crimes in a public trial. Secret evidence is not evidence, because it is not evident.

        While reluctant to step in lawyerly issues, assassination is currently illegal under Executive Order 12333, no? al-Awlaki was assassinated.

        I do not consider the recent (and ongoing) redefinitions of “terrorist”, “assassinate”, and “war” to be binding upon my use of the English language.

        1. Right, but your mistake is in assuming that an arrest is possible in these cases. You are ignoring the very plain language that Holder used: that such attacks are only permissible when arrest is not feasible. Anwar al-Awlaki moved his person to a location in which not only did US law enforcement have no jurisdiction, but over which the government of Yemen had lost control to al Qaeda. That’s a very specific situation, and one in which the process you are arguing for breaks down completely.

          As for the Executive Order you reference, its relevance is, at best, murky, beyond just the fact that an Executive Order isn’t really a very impressive way to bind the executive, since he can change it at will. It is a lot less clear cut than you seem to think that this constitutes an assassination. During war, as the AUMF has declared that we are, the targeting of a particular individual is not necessarily an assassination. To take two examples from World War II, neither the British Long Range Desert Group’s mission to kill Erwin Rommel nor the USAAF’s successful mission to kill Isoruku Yamamoto qualify as an assassination from a legal perspective. So, targeting an individual al Qaeda member may well not fall under the aegis of EO 12333. FWIW, there is essentially no legal definition of where the dividing line between a civilian and a combatant is, making al-Awlaki’s status unclear.

      3. Mark: “But there are threats: people plotting to kill Americans. They don’t have armies or wear uniforms, but they’re enemies all the same. How would you propose to deal with them?”

        The same way that other countries do? Which, in practice, means that they either deal with them through the criminal justice system or not at all. As Bruce Schneier would tell you, the threats you find on the frontpages of newspaper are generally not the ones you need to worry about. Consequently, most countries do not bend their criminal justice systems into pretzels (or at least not quite as much) to deal with relatively minor risks at a serious cost to civil liberties. (And probably also because they wouldn’t get away with it unless they’re superpowers.)

        There have been quite a few American citizens who supported the IRA (including financial support). The IRA, as a quick reminder, was a fairly serious terrorist organization that, inter alia, attempted to assassinate the entire British cabinet and very nearly succeeded (cf. Brighton hotel bombing). I think we can safely assume that any terrorist organization that tried to assassinate the American cabinet in its entirety (and nearly succeeded at it) would not be treated with kid gloves.

        So, would the British government have been within its rights to send drones to New York to kill Peter T. King assuming that the American government had refused to do anything about the affair (say, because it believed that Rep. King was well within his first amendment rights)? You can assume, for the sake of this exercise, that the British government would have done its best to minimize casualties (though, alas, a few New Yorkers may have died anyway; making an omelette is always hard on some eggs, as they say).

        I am sympathetic to the idea that regular criminal law is insufficient to deal with international terrorist organizations. At the same time, I’m pretty sure that international terrorism has very little to do with war in the traditional sense and that restricting yourself to applying either regular criminal laws or the laws of war is a false dichotomy. The Nuremberg trials are an example of a third option that worked reasonably well. It shouldn’t be too hard to hammer out procedures for such situations that both protect the rights of individuals and the safety of America. If the administration were seriously interested, that is.

        But, as it turns out, both the Bush and the Obama government have appeared to be pretty comfortable with their options. It does not seem as though they feel (or felt) particularly unhappy with having to treat the Al Qaeda conflict as a war; in fact, they seem to have relished the lack of judicial oversight, at least at times (for that matter, Congress, if anything, has been worse). A case in point is Eric Holder’s speech: If you think the law allows you to kill US citizens abroad without judicial review, and you’re uncomfortable with it, then you push for a change in the laws. You may not succeed, but if you don’t even try (as in the case of the Guantanamo detainees, where, to their credit, Holder and Obama did their best to give them regular trials), then I will assume that the current state of things suits you fine.


      Sec. 349. [8 U.S.C. 1481]
      (a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-
      (1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
      (2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or (3) entering, or serving in, the armed forces of a foreign state if
      (A) such armed forces are engaged in hostilities against the United States, or
      (B) such persons serve as a commissioned or non-commissioned officer; or
      (4) (A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or
      (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or
      (5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
      (6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
      (7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, United States Code, or willfully performing any act in violation of section 2385 of title 18, United States Code, or violating section 2384 of said title by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if an d when he is convicted thereof by a court martial or by a court of competent jurisdiction.
      (b) 1/ Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the enactment of this subsection under, or by virtue of, the provisions of this or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.

      Sec. 351. [8 U.S.C. 1483]
      (a) Except as provided in paragraphs (6) and (7) of section 349(a) of this title, no national of the United States can lose United States nationality 1/ under this Act while within the United States or any of its outlying possessions, but loss of nationality shall result from the performance within the United States or any of its outlying possessions of any of the acts or the fulfillment of any of the conditions specified in this chapter if and when the national thereafter takes up a residence outside the United States and its outlying possessions.
      (b) A national who within six months after attaining the age of eighteen years asserts his claim to United States nationality, in such manner as the Secretary of State shall by regulation prescribe, shall not be deemed to have lost United States nationality by the commission, prior to his eighteenth birthday, of any of the acts specified in paragraphs (3) and (5) of section 349(a) of this title.

  2. I think our criminal justice system, including due process protections, is perfectly capable of dealing with so-called “terrorists.” As an out atheist, my lifespan would be measured in, at best, weeks, were Rick Santorum, Sarah Palin, or Michele Bachmann ever to become president. If you don’t want a president you DON’T like to be given the power to shoot dead a US citizen anywhere in the world, _including on American soil_, you shouldn’t give such power to a president you _DO_ like.

    1. I think our criminal justice system is perfectly capable of dealing with terrorists who we are in a position to apprehend. The question becomes what happens with regards to terrorists who have placed themselves in a jurisdiction beyond the reach of law enforcement. It should be noted that this is one of the distinctions involved in the question of whether it is legally permissible to target American citizens. No one is talking about giving anyone else the power to target an American citizen, or anyone else, who is on American soil. That’s a complete misrepresentation of what Holder has said; he explicitly talked about foreign soil.

      What we are talking about is terrorists who are either in a country that is giving them asylum, as Afghanistan was before and immediately after 9/11, or are in a part of a country that the national government has lost control of to a terrorist group or to some other organization that protects those terrorists. That is a very different situation than the one you describe.

  3. It isn’t that I disagree with this in theory. It’s that I think Mark and others are underestimating the problems inherent to using due process of law in these situations. I’ll just mention one thing for now: does the federal judiciary *want* to get into the morass of okaying military strikes on foreign countries? Is it a good idea to *make* them do so?

    1. Our Constitution does not require judicial approval for military “strikes” on foreign countries. Launching military “strikes” against foreign countries is also called “war” and our Constitution requires (or at least it did before the Cold War) a formal declaration of war by the Congress before we can make war against another country.

      We have become far to casual about the idea of making war against and invading other countries. And the idea that supposed liberals would support a president who claims the right to sign a death warrant for any American citizen based on secret evidence. I do not think that the framers of our constitution would recognize or like what we’ve become. I certainly don’t.

      1. The Administration’s position is that the US and Al Qaeda are in a state of war. That state of war arose because (1) in 1996, bin Laden issued a fatwa which (in retrospect) has been considered tantamount to a declaration of war and Al Qaeda followed that up with several acts of war including attacking a US warship, the Pentagon and a major civilian symbol of US hegemony and (2) after the 2001 attacks the US Congress passed the AUMF.

        Under those conditions, a strike against Al Qaeda military assets intended to be used against the US is lawful. Certainly more justifiable than the “Shock and Awe” bombing of Baghdad.

        There are three difficulties that people have with the concept:

        1. Al Qaeda is a non-state actor. It’s easy to recognize legitimate targets within Westphalian states. It’s a lot harder to do that with Al Qaeda. One can, some do, question particular decisions that a strike was against a legitimate target.

        2. Drone strikes are very precise. They kill only a handful of people. When the US dropped an atom bomb on Hiroshima, it was very difficult to identify any individual Japanese as a target. Not so with drone strikes. We identify and empathize with individual casualties.

        3. In this particular case, al-Awlaki was an American citizen. Had he survived and fallen into American hands he would have been liable to prosecution for treason. We are tempted to view the strike and prosecution as alternatives.

        But inserting the judiciary into the process won’t deal with these difficulties.

        1. “It’s easy to recognize legitimate targets within Westphalian states. ”

          The point is that ‘waging’ ‘war’ against non-Westphalian non-states is that it’s handing a blank check to the executive branch.

      2. Like it or not, Congress *did* authorize military strikes in foreign countries. That’s what the AUMF is. We may think that it’s overbroad, but that’s what it says. So the declaration of war part of your reply is irrelevant.

        As for the framers and this particular issue, I won’t even begin to claim to know where they would stand on this issue. That’s because one of the key assumptions that they made, and which was largely valid at the time, has broken down. That assumption is that non-state actors were inconsequential in international affairs. There are a lot of things about our legal regime, both domestic and international, that depend upon that assumption. The fact that it is no longer true poses very serious challenges and produces many situations in which there is no proper legal answer. This is true for many things beyond national security. The question of how to regulate multinational corporations is another example.

        Lastly, your first sentence is exactly my point. Our Constitution does not give the judiciary a role in approving military strikes on foreign countries. That is reserved entirely to the legislative and executive branches. That’s the background to my point that I’m not sure that it is a good idea to insert the judiciary into that question, and that’s exactly what any proposal for judicial oversight on this question entails. It would require that the executive go before a judge and get him to approve a military action.

        1. This series of comments would fit in well as a post at Volokh, with a
          sitting Republican pResident.

          I think the main “argument” is fairly repulsive. It’s all so difficult, so
          we’ll just blow up everything and kill all their family, women, children,
          just to be sure. Oh, so very difficult.

        2. As for the non-state actor question; isn’t what we’re doing with al Qaeda somewhat similar to the war we waged against the Barbary pirates early in the 19th century or against the Moro rebellion at the turn of the 20th century?

        3. “As for the framers and this particular issue, I won’t even begin to claim to know where they would stand on this issue. ”


  4. The thing is, while I agree there are a few people, or maybe even many, out there trying to kill Americans, it doesn’t seem like a real war to me. And I don’t think that a war approach is necessarily the best way to fight fanaticism, either, even if this were a “real” war.

    And I think we’ve done our share in confusing things, too, by involving the Taliban, who never attacked us until we invaded “their” country. (I feel bad for many Afghanis, but really, are we helping them? I’m not sure.) And now, we shoot them in Pakistan, an entirely different country, whose populace seems of very mixed minds about both them and us.

    How does any of this make sense? Plus, I still think the word “homeland” is fascist, and I think the DHS was a big mistake. And it seems to me like the FBI is better at it anyhow, though that is just from reading the paper.

    I for one don’t see how a few more federal judges could really make things any worse. And I would feel a lot better about it. But, I have long felt that the legal/criminal approach was clearly superior. We had boxes and boxes of evidence of Bin Laden’s crimes sitting in south New York, before 9/11, that we could have shown to the world, to prove his crimes. Why didn’t we? I think one reason is, we didn’t think we should have to answer to anyone. And that’s wrong.

  5. I am so glad Obama kept his promise to return us to the “rule of law.” And that “public option” has done wonders of the clusterf*ck that is our health care system. Why there are actually fewer Americans without access to health care now than we had in 2009. Wait? What? Wrong movie? Sorry. My bad.

    1. Well, I sometimes share your frustration, but to keep some perspective, the president hasn’t started any new or accidental wars. I don’t think he’ll attack Iran. And IIRC, he did try to shut Gitmo. Maybe in his second term. And don’t forget the Supreme Court. Those two things are why he is better. Much, much better. Even if it doesn’t feel that way.

      1. No doubt. But President Obama is the precise analog of the scientist who through hard work and smarts stumbles onto a discovery that can change the “how and why” of his or her field, but instead continues putzing along in an incremental rut so as not to rock the boat. Such chances come along only once in a great while, and failure to take advantage of them is inexcusable and very likely cowardly. And no, I am not a starry-eyed idealist. I have been voting as a Democrat since 1974, taking up Michael Harrington’s oft-stated view that the left wing of the possible is the only way to vote. Are we incrementally better off than during the reign of Bush the Lesser? Of course. But chances not taken are usually lost forever. And had Obama been slammed by the forces he said he would fight? Well, sometimes how you lose is much more important than how you win and the early tactical defeats set the stage for a final strategic victory. Ask the shades of Jefferson Davis and Abraham Lincoln.

        1. I guess I don’t see the president the way you do, nor did I have such high expectations. To my mind, after it nearly killed him to get a not-that-great healthcare plan passed, it was clear that he wouldn’t be allowed to get much done, domestically. I know who is to blame for that, and it’s not him. I also think he is inherently very centrist anyway.

          Presidents really don’t have that much control domestically, which is why the areas they do control are more important.

          1. Fair enough. As I am told frequently by those closest to me, I don’t have my fingers on the pulse of the public 😉 Perhaps it is all I can do to keep my hands from around its throat, speaking only metaphorically of course.

  6. The Supreme Court has spoken on this in the 2004 case of Hamdi v. Rumsfeld:

    “We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. . . .

    In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.”

    Neither the president or any other executive branch official (who are the ones who can put an American on the kill list) constitute an impartial adjudicator/neutral decision maker.

  7. As someone who has experienced being confused with someone else, albeit “only” by a collection agency, I would argue that part of the “due process” business is to ascertain that the person being targeted is really the person who should be targeted: mistakes can be made, but without any due process taking place, it turns into a fatal error.

    It also seems to me that the whole point of having a judicial system in place is to provide the framework for such determinations of guilt or innocence, and if it’s “too much trouble” to use for some matters, before long it will be too much trouble to use for countless other matters.

    “Due process” is a defined legal concept, and I do not understand at all how it can simply be redefined at whim and that this then becomes the new reality. This executive fiat makes a mockery of our entire legal system.

  8. “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”

    How convenient that we have an entire branch of government composed of such people, already organized for the purpose!

    As seldom as it is that I find myself in agreement with Mark, I should treasure this. The only thing I disagree with is is confidence Obama could never, ever abuse this unreviewable power to kill citizens. Maybe he wouldn’t, but I see no reason to be confident about it.

  9. Executives overreach. It’s what they do, and it’s why we have not one, but two other branches of government. We won’t ever know what the results would have been if Aulaqi had decided to assert his rights as a US citizen — he had a golden opportunity, as he could have intervened in the lawsuit brought by his father — and we’ll have to see what happens next time such a thing comes around.

  10. In cases where the accused is an American citizen, IMO there should be a trial and conviction before the person can be executed. If the accused can’t be apprehended, why not try him in absentia, with court-appointed legal defense? I don’t see why al-Awlaki couldn’t have been tried for treason, and if the government had the evidence, convicted and sentenced to prison or death.

    Echoing Kathleen’s comment above, I think the path the US has gone down, of letting the Executive monitor phone/email, indefinitely detain, torture, and kill, all by fiat, makes a mockery of our legal system. We can do better than that.

    The US could define a legal process for dealing with non-state enemies that incorporates real due process of law; it appears to me that we just don’t want to.

  11. Mark’s trust in the administration to kill only enemies and his willingness to believe without evidence that the victim deserved his fate are familiar coming from those with a propensity to hero-worship. (If might be nice if people like Mark found a pretty garden gnome to transfer all that esteem to, but whatever.) As for potential victims of the policy, the criteria for his concern seem twofold: who’s targeting them (Santorum / Cheney v. Obama) and whether they have weird hyphenated names. He doesn’t say the policy is right, but he does unhesitatingly accept that the outcome is right. Because the Leader cannot err!!!

    I don’t think Mark really thinks it’s okay if Santorum wants to knock off an innocent imam. I only observe that the loci of his worry are a Wikileaks supporter (probably a middle-class liberal!) and a Unitarian (unlikely to be an Arab). When they start coming for Us, we draw the line! Glad he doesn’t insist that the GOAL of this odious policy is MORE transparency, respect for civil liberties, and adherence to law. And that lesser minds can’t understand the strategic brilliance of the Master, or the Byzantine byways by which he shall lead us to the goal. That’s what I would have expected.

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