The Justice Department "white paper" leaked last week raises… (Wes Bausmith / Los Angeles…)
In 2011, Anwar Awlaki, a U.S. citizen, was reportedly targeted and killed by our government in a drone attack. Ever since, a chorus of scholars, lawyers and civil and human rights activists has been asking about due process. Now we know they were right to be concerned. The Obama administration's lawyers have gotten it wrong.
The Justice Department "white paper" leaked early this month raises many troubling legal, ethical and policy questions, but none is more fundamental to our democracy than the way it deals with the 5th Amendment's admonition: No American citizen shall "be deprived of life, liberty or property without due process of law."
The administration memo concludes that there are no due process problems with a drone program that targets Americans, and it relies primarily on Hamdi vs. Rumsfeld, a 2004 Bush-era Supreme Court decision, to justify that conclusion. But the memo writers make an inexcusable mistake: They cherry-pick the decision, disregarding the heart of what the justices said.
In the case, Yasir Hamdi, a U.S. citizen picked up on the battlefield in Afghanistan, sought to challenge his indefinite detention in a U.S. military facility as an enemy combatant. The Bush administration argued that, in wartime, the executive alone should determine who the enemy is and what measures can be used against him.
But the Supreme Court disagreed. It remanded Hamdi's case to a lower court for a factual review of the accuracy of his enemy combatant designation. The review never happened; after the government lost in court, it released Hamdi and deported him.
The Supreme Court's reasoning in Hamdi remains the most relevant legal precedent that applies to targeted killings. Significantly, eight of the nine justices agreed that Hamdi was entitled to an impartial review, outside the executive branch, of the facts of the case. Only Justice Clarence Thomas bought the Bush administration's theory of executive power. "Due process requires nothing more than a good-faith executive determination," he wrote in his dissent. Justice Sandra Day O'Connor, writing the principal opinion, reminded us of the court's decades-long admonition: "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
O'Connor further explained how the due process clause operates in wartime when the executive branch is making a determination about the fate of an American citizen. Hamdi's interest in liberty, she wrote, must be balanced against the needs of the executive in fighting a war:
"Whatever power the United States Constitution envisions for the executive ... in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.... [I]t would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the executive opposes making available such a challenge."
You don't need a law degree to apply that reasoning to targeted killings. If the executive cannot act alone when an American's liberty is at stake in the post-9/11 war on terrorism, the Supreme Court would be at least as concerned when an American's life is on the line. The court has always ruled that the more crucial the individual interest at stake, the more "process" is due.
But what if the target presented an "imminent threat"? What about battlefield exigencies in the war on terrorism? The white paper makes much of such justifications for swift executive action, and yet we've been assured by Atty. Gen. Eric H. Holder Jr. and CIA Director-designate John Brennan that targeting decisions and the order to kill do not occur without painstaking deliberation by a high-level official. (Indeed, reports indicate that Awlaki's name was put on a hit list at least 17 months before the drone attack that killed him.) In other words, there would be time for an impartial review of facts.
On the whole, the administration's white paper reads like a brief advocating for one outcome, not a dispassionate discussion of the law. It ignores the fact that eight of nine Supreme Court justices ruled that the executive branch may not take away our liberty on its own say-so, and merely cites the requirement of a balancing test — individual rights against the need to fight a war — and concludes that the balance tips for the executive to act on his own in targeted killings.
The Obama administration continues to fight to keep the specific issue of targeted killing from reaching a court for review and decision. So we have only our objective reading of the decision in Hamdi to tell us what the law is. It cannot be what President Obama's lawyers would have us believe because when President Bush's lawyers made these same arguments, they lost.
Vicki Divoll is a former deputy legal advisor to the CIA's Counterterrorism Center and former general counsel to the Senate Intelligence Committee.