Due Process and Drone Strikes

Micah Zenko, who normally does outstanding work at the Council on Foreign Relations, got a bit sloppy with his “Year in Quotes” at Foreign Policy.  Among the twenty quotes that Zenko describes as “puzzling, hypocritical, and revealing”  is the following:

4. Attorney General Eric Holder: "An individual's interest in making sure that the government does not target him erroneously could not be more significant." ("Remarks at Northwestern University School of Law," March 5, 2012.)

Holder offered this remarkable observation during a landmark speech that provided the Obama administration's justification for why U.S. citizens can be killed, and why secret Executive Branch discussions are sufficient to deprive a citizen of his Sixth Amendment right to due process.

 (emphasis mine).  While Attorney General Holder did give a speech at Northwestern’s Law School defending U.S. counterterrorism policies, his defense of the targeted killing of (presumably) Anwar al-Aulaqi did not center around the Sixth Amendment but the Fifth Amendment.  The Sixth Amendment deals with criminal procedures like trial by jury whereas the Fifth Amendment deals with Due Process. 

More importantly, Holder did not argue that “Executive Branch discussions are sufficient to deprive a citizen of his [Fifth Amendment] right to due process.”  Rather, Holder rightly argued that Fifth Amendment protections exist on a continuum that balances individual rights against the interests of the state.  That is, the amount of process owed to an individual depends on the significance of liberty the individual will be deprived of and the significance of the state’s interest in depriving the individual of that liberty.  Obviously, life is a fundamental individual interest but likewise the state’s interest in survival is paramount:

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
 The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat. Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

In the case of Anwar al-Aulaqi and other U.S. citizens who are actively waging an armed conflict against the United States, Holder is asserting that state owes those individuals a fairly small amount of process compared to, say, an individual who is accused of murder. This is not terribly controversial—consider, as Holder analogizes, the case of U.S. citizens who fought for Nazi Germany during World War II or U.S. citizens who were in rebellion during the Civil War. In each of these cases, it would be preposterous to assert that it was incumbent upon the United States to single out U.S. citizens fighting in opposition to the United States, serve them with warrants, and try them for domestic law violations.  No, these citizens exhaust heavily weight the due process balancing test in favor of summary state action by taking up arms with the enemy and actively opposing the United States.

The discomfort that arises in the case of al-Aulaqi and others is that these citizens were singled out for targeted strikes. But this discomfort is misplaced—at least in Zenko’s formulation. We are not discomfited by a supposed violation of the due process clause but, rather, by the notion of targeted killings in general—a notion that we too easily conflate with assassination. 

Forgetting DOMA

On Wednesday, President Barack Obama endorsed marriage equality. While his endorsement has been much touted, it strikes this observer as something of a half-measure. The President staked out a "personal" position and does not believe the federal government should get involved but, rather, the regulation of marriage should continue to be--as it has always been--a matter of state regulation. He highlighted both of these as well as his administration's refusal to enforce one of the provisions of the Defense of Marriage Act. But juxtaposing DOMA and the President's belated acceptance of the need for same-sex marriage is revealing.

DOMA contains two important provisions. One--the one the President does not enforce--defines marriage for federal purposes as that between a man and a woman. The other, more important provision, exempts states from extending "full faith and credit" to same-sex marriages that are valid in the states in which they are entered. It is this provision--and the failure of the Obama administration to move for its repeal--that undermines the importance of President Obama's personal belief that homosexuals should enjoy equal rights. You see, the U.S. Constitution contains the Full Faith & Credit Clause (Art. IV, Sec. 1), which requires each state to give "full faith & credit" to the public acts of each other state. FFC means that should I sue you in Virginia and win a money judgment, that judgment must be enforced against you by Mississippi. Similarly, should I validly marry in Rhode Island, New York must recognize that marriage. The Constitution also empowers the Congress to regulate the implementation of FFC. Enter DOMA. 

The genius of the second provision of DOMA is that it turns FFC on its head. Whereas, prior to DOMA, should same-sex marriage have become legal in Massachusetts, then every other state would have to recognize as valid all same-sex marriages entered into in Massachusetts. The impact of this is, basically, that with a few provisos, a handful of states could have effectively forced upon the whole of the United States recognition of same-sex marriage. What DOMA does is nullify the power of FFC, leaving us with a state-by-state fight for equal civil rights for homosexuals. In effect, DOMA's architects have perverted both FFC and the notion of states' rights. It is stunning, really. More importantly, the federal government has no role in enforcing this provision of DOMA. Thus, the President's "refusal to enforce DOMA" does nothing at all to change the state of marriage disability for same-sex couples.

So, this observer gives the President credit for coming out in favor of same-sex marriage. Doing so from his podium lends it incredible weight and import. But, until the administration pressures its allies in Congress to repeal DOMA's FFC provision, the endorsement can be little more than a half-measure.