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Tuesday, May 29, 2012

Internal Executive Discussions as Due Process

On September 30, 2011, U.S. predator drone strikes in Yemen killed Anwar al-Awlaki, a U.S. citizen and Muslim cleric who was alleged to have broadly encouraged al-Qaeda attacks on the United States and worked directly with "underwear bomber" Umar Farouk Abdulmutallab on a plot to detonate a bomb on a commercial flight bound for Detroit.  A memorandum prepared by the Office of Legal Counsel at the Department of Justice furnishing the legal justification for the killing of al-Awlaki has not been released.  But legal affairs reporter extraordinaire Charlie Savage of the New York Times revealed, only a week after the strikes, that the OLC memo "concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him."  In reaching this determination, the memo, among other things, considered -- and rejected -- objections that the killing would be inconsistent with the Fifth Amendment's due process requirement. 

Following the strikes and Savage's important story, Attorney General Eric Holder shed light on the administration's legal support for the al-Awlaki killing.  He said, now famously, that: "Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.   This is simply not accurate.   'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security.   The Constitution guarantees due process, not judicial process."

Today, thanks again to the New York Times, in an article highlighted by Dan, we now have a greater sense as to the contents of this circumscribed concept of due process.  Jo Becker and Scott Shane explain that, almost every week, government officials gather to review information and "nominate" to President Obama who should receive a drone strike.  President Obama's counterterrorism adviser, John Brennan, states that the group goes through "a rigorous checklist: The infeasibility of capture, the certainty of the intelligence base, the imminence of the threat, all of these things."  Becker and Shane write that President Obama has assumed final responsibility for this "process to designate terrorists for kill or capture, of which the capture part has become largely theoretical."  They emphasize that "it is the president who has reserved to himself the final moral calculation."  Importantly, Becker and Shane note that the OLC decided that "the Fifth Amendment’s guarantee of due process... could be satisfied by internal deliberations in the executive branch."

In other words, what may be crudely described as an executive fantasy football draft with President Obama acting as general manager -- where the results of the draft are the deaths of citizens unchecked by a coordinate branch -- comports, in the OLC's estimation, with constitutional due process guarantees.  I appreciate President Obama's willingness to take on the ultimate responsibility, in this process, to sign-off on who deserves to die by way of drone strike. As suggested by two former high-level government officials' lines in the article -- that "Once it’s your pop stand, you look at things a little differently" and that "You can pass a lot of laws... [but] [t]hose laws are not going to get Bin Laden dead" -- it very well may be that the President somewhat understandably is concerned more about practical efforts in the war as opposed to the niceties of the law.

For structural and separation of powers reasons, however, it seems problematic that the executive department should have exclusive say as to whether it is constitutional to kill citizens (and innocents along the way).  While the courts may not be in the best position to second-guess these decisions, surely our system contemplates some judicial role in the overall process.  The laws may speak with a different voice in times of war, but it's difficult for me to square our general tripartite scheme with the notion that the law is equal to a unilateral executive voice in the national security context.  Hopefully the latest NYT article will help give rise to further proposals as to the exact contours of how the other branches can and should interact with the executive in this area in order for the final decisions on drone strikes to have greater legitimacy and a firmer constitutional foundation.

Posted by Dawinder "Dave" S. Sidhu on May 29, 2012 at 05:37 PM in Constitutional thoughts | Permalink


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Joe, I appreciate very much your comments. I suspect that we may not be that far off from one another, and that your concerns may be tied more to my inartful or clumsy explanation, than to the substantive principles underlying and giving rise to my concerns. We both seem to share an appreciation for the role of the executive in prosecuting the war, acknowledge that the battlefield situation and exigent domestic circumstances are unique and specialized contexts, and a viewpoint that oversight is not absolutely inappropriate in the gray areas -- and there are different shades of gray. I also suspect that our good faith exchange highlights the difficultly of this issue, and how executive authority and the structural, separation of powers considerations that were the foundation of my initial post, are not easy to reconcile given the limited guideposts that constrain the necessary constitutional issues.

As to the D.C. Circuit and post-9/11 national security, I must suggest to readers Steve Vladeck's excellent work in this area, in which he explores the claim that the D.C. Circuit as a whole is hostile to the Supreme Court's post-9/11 national security decisions, particularly Boumediene. As with other things he writes, it's required reading for anyone with interest in national security.

Posted by: Dawinder S. SIdhu | Jun 6, 2012 7:38:42 PM

The executive is not merely saying "only terrorists who cannot be captured" can be targeted. I continue to be wary about such -- with respect -- hyperbole. The assistant tasked with counterterrorism in a well reported speech listed various criteria. I realize it was a bit vague, so let's bind him to it.

And, when "terrorists" in Colombia who are part of cocaine cartels with no connection to the Al Qaida type groups that AUMF 2001 is concerned with are involved, yes, off the bus. But, and maybe this makes the authorization problematic, I think category B actors in various cases are covered. It speaks of "persons" and "organizations" and by nature does not seem to be only concerned about use of force in the proverbial "battlefield." Terrorist camps seem to apply here.

The one targeted American citizen (one or two others appear to be collateral damage) meet Charlie Martel's test. I think it's possible that American citizens, especially given the lack of immediacy there, DO have some right to go to court. The U.S. has a special obligation to protect its citizens, even abroad. See, e.g., Slaughterhouse Cases. I think in various cases a FISA Court might be appropriate. Details. Still, the problem is he didn't go to court. His father did & the judge held he didn't have standing & hinted that it was a political question anyhow.

The D.C. court of appeals, it should be noted, is showing no interest in second guessing the President here. I realize that's another issue, but realistically, it is important.

Posted by: Joe | Jun 5, 2012 10:59:36 AM

Thanks for the thoughtful post and comment Dave. As to those you describe as category B, I wonder if someone like al-Awlaki is the operational equivalent of an officer in armed conflict? I share the deep concerns with the notion that executive deliberation meets due process obligations; however, the harder question is whether those obligations apply to the category B actors.

Posted by: Charlie Martel | Jun 4, 2012 2:16:36 PM

It seems uncontested that there are individuals who, without prior judicial intervention, may be killed on the battlefield (let's call this category of individuals, "A") and when engaged in imminent threats to domestic public safety (category "C"). There are other individuals, such as al-Awlaki, who arguably fall in the middle (category "B"); they are situated away from the battlefield and not engaged in an immediate actions or in a context akin to exigent circumstances. It is this almost boundless category of individuals that gives rise to concerns that an executive nomination process is constitutionally adequate without any -- even circumscribed -- oversight. It may very well be true that some individuals in category B may be actively involved in terrorism and that their capture is not feasible. It may also be true that there are individuals in this category who are wrongfully identified as taking part in active terrorist efforts or whose capture is feasible (indeed, suggestions are that the executive is less inclined to fully explore the feasibility of capture). And, there are innocents who are killed as collateral damage whose rights must be considered as well in any calculus as to the constitutionality and propriety of this executive process. At bottom, my post expresses doubt that constitutional due process considerations may be satisfied solely by executive assurances that its process limits targeting killings to only terrorists who cannot be captured.

Posted by: Dawinder S. Sidhu | Jun 4, 2012 11:16:40 AM

I cited the battlefield, Mr. Buck, for simplicity, but you are allowed to kill people in other places too & not with a trial either. Such as a police officer in certain cases. Yes, even "citizens." So, why harp on that as if that is a controversial thing? It is not.

Nor does Marty Lederman thinking Bush going too far on torture and other methods mean that not going as far is also a problem. Where does, e.g., the OLC memorandum he wrote allow waterboarding?

Posted by: Joe | May 31, 2012 3:22:18 PM

I was mostly thinking of folks like Marty Lederman, who used to blog quite a bit at Jack Balkin's site about issues such as warrantless wiretapping, the OLC torture memos, etc. It looks like he is actually the co-author of the OLC memo (see http://www.salon.com/2012/05/30/how_extremism_is_normalized/ ) saying that the President can order the death of a U.S. citizen (this wasn't on the battlefield, Joe) without a trial, based on the "due process" of having had a conversation at the White House.

Maybe one day Lederman be able to give an account that reconciles his positions on these issues.

Posted by: Stuart Buck | May 30, 2012 4:33:00 PM

In fact, I misspoke -- even in a federal prison cell, lethal force can be used in certain situations. The TN v. Garner situation also comes to mind. In the field, the police have the power to use lethal force in certain emergency decisions. Who but they (the executive agents) make the final call? If it is misused, there are various ways including civil suits to penalize them. Still, they don't have "exclusive say" given there are certain rules in place; they have exclusive power to apply them in some cases, yes. I don't see how else to do things in certain cases.

Posted by: Joe | May 30, 2012 4:09:22 PM

I appreciate the reply. The final paragraph noted that:

"For structural and separation of powers reasons, however, it seems problematic that the executive department should have exclusive say as to whether it is constitutional to kill citizens (and innocents along the way)."

I still think that is too broadly stated since only pure Yoo-ism would go that far. You now say as a descriptive matter that "the executive alone seems to be making these calls." Well, no. If a "citizen" is in a federal prison cell, I don't see where Obama thinks he -- w/o court review -- has the power to kill them. Various hedges are on in place before the power to kill is justified.

So, you have to focus on the specific areas where the President says that the executive has the discretion to make the final decision. "All suspected terrorists" aren't said to be open to be killed. Only certain conditions. But, in certain "imminent" situations, yes, the President has power. When the U.S. is attacked, the President doesn't have to first go to Congress to use military force under the Constitution. On the battlefield, unless the person is surrendering, people can be killed. Even there, however, Congress and treaties etc. set limits.

Posted by: Joe | May 30, 2012 4:06:17 PM

Stuart -- thanks for your comment, which I believe Paul sufficiently addresses. I would only add that I myself supported President Obama in 2008, to the extent that is of any relevance to the credibility of my post.

Joe -- thanks also for your comment. I did not state that President Obama claims that "the executive department should have exclusive say as to whether it is constitutional to kill citizens." I noted, by contrast, that as a descriptive matter the executive alone seems to be making these calls and that I myself find it problematic that the executive appears to believe that the internal deliberations as described in the NYT article satisfy constitutional due process guarantees. What if, instead of taking all suspected terrorists to Guantanamo or Bagram, the executive, by way of this outlined process, simply killed them and said doing so was justified because of an imminent threat and the infeasibility of capture. This, I believe, can give rise to reasonable concerns about whether the executive's performance of his national security functions is consistent with due process considerations, particularly where it is suggested that there may not be as much genuine interest in capturing suspected terrorists, leaving killing as the only functional option left on the table. If a president were to do this, for example to skirt potential habeas review or to avoid messy political debates as to where detainees should be situated, legitimate concerns about due process and the proper role of the branches may be present.

Posted by: Dawinder S. Sidhu | May 30, 2012 1:51:54 PM

Stuart, of course the answer is that many people would have been vociferously critical, more so than they have been with respect to Obama. But in fairness, a number of serious people who were seriously critical of particular actions of the Bush administration have also been critical of Holder's speech and of developments like this one, including those who, I think it's fair to say, line up on the left rather than the right. See, for example, David Cole's NYRB post on Holder's speech.

Posted by: Paul Horwitz | May 30, 2012 10:43:45 AM

I am not aware of people who thought Bush needed the courts before the military targeted enemy combatants in Afghanistan or some such place.

Obama does not claim that the "the executive department should have exclusive say as to whether it is constitutional to kill citizens." That is woefully overbroadly stated. For instance, Congress can set up various rules here. Where does Obama say it cannot? OTOH, yes, on the battlefield, the c-i-c has broad power to determine who is shot at.

Why is this so hard?

Posted by: Joe | May 30, 2012 10:35:53 AM

What would people have said if the Bush OLC had produced a memo saying that Bush's White House deliberations were all that due process required?

Posted by: Stuart Buck | May 30, 2012 9:50:26 AM

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