Due Process Delivered by Drones

When President Obama approves a drone strike against someone he
identifies as a terrorist, John Brennan explained
at his confirmation hearing last week, the missile fired from that
unmanned aircraft is delivering prevention, not punishment. “We
only take such actions as a last resort to save lives when there’s
no other alternative,” said Brennan, the counterterrorism adviser
Obama has picked to run the CIA. A Justice Department white paper
leaked a few days before Brennan’s hearing likewise describes death
by drone as an “act of national self-defense,” part of an “armed
conflict” with Al Qaeda and its allies. Yet the white paper also
speaks of due process for American citizens condemned to death by
the president, a requirement it says can be met through secret
discussions within the executive branch. This contradiction at the
heart of Obama’s “targeted killing” policy, combining the rules of
the battlefield with the rules of the courtroom, makes a muddle of
both. Last month, in a
decision that upheld the president’s right to keep the memos
summarized in the DOJ white paper under wraps, U.S. District Judge
Colleen McMahon noted that “the concept of due process of law,”
guaranteed by the Fifth Amendment, “has never been understood to
apply to combatants on the battlefield actively engaged in armed
combat against the United States.” That is how the Obama
administration describes members of Al Qaeda and allied groups:
Regardless of nationality, they are enemy combatants who legally
can be killed at will, wherever they happen to be. Yet in a speech last March, Attorney General Eric Holder

argued not that the Due Process Clause is irrelevant in
this context but that President Obama’s kill orders comply with it.
“The Constitution’s guarantee of due process is ironclad, and it is
essential,” Holder said, but “due process and judicial process are
not one and the same.” Similarly, in an interview with CNN last
September, Obama
claimed the procedures for identifying people subject to
summary execution by drone, though confined to the executive
branch, are “extensive” enough to comply with “our traditions of
rule of law and due process.” By saying that due process applies to drone strikes on suspected
terrorists in places such as Pakistan and Yemen, the administration
implicitly concedes that such operations are fundamentally
different from shooting an enemy soldier during a battle. In the
latter case, both the identity of the enemy and the threat he poses
are clear, and so is the argument for self-defense. When it comes
to people marked for death by the president, however, all of these
issues may be matters of dispute. During Brennan’s
confirmation hearing, Dianne Feinstein, the California Democrat
who chairs the Senate Intelligence Committee, was at pains to
portray Anwar al-Awlaki, one of the three Americans killed by
drones so far, as “a senior operational leader” of Al Qaeda who
posed “an imminent threat”—the sort of target discussed in the DOJ
white paper. Feinstein herself had to testify on these points
because neither Brennan nor any other administration official will
discuss the evidence against people targeted by drones. The lack of transparency is especially troubling because the
administration’s definition of “imminent threat” does not hinge on
plans for a specific attack. Furthermore, the white paper
explicitly leaves open the possibility that the criteria it
describes, while sufficient to justify a presidential death
warrant, may not be necessary, and it acknowledges no geographic
limit on Obama’s license to kill. Brennan conspicuously dodged the
question of whether the president can order hits on U.S.
soil. Given this alarming combination of deadliness and silence, it is
not hard to see why, as Judge McMahon put it, “some Americans
question the power of the Executive to make a unilateral and
unreviewable decision to kill an American citizen who is not
actively engaged in armed combat operations against this country.”
The real puzzle is why so many Americans seem happy to trust the
president with this power.

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Due Process Delivered by Drones

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