AG Holder: Assassination is unlawful. We decided these killings are lawful. Ergo they are not assassinations. Q.E.D. bit.ly/AjR13a— George Wallace (@foolintheforest) March 5, 2012
Earlier this week, U.S. Attorney General Eric Holder used the occasion of a speech to students at Northwestern University Law School—a few miles up the lake shore from the University of Chicago, at which the now-President of the United States once taught constitutional law—to talk about and to attempt to explain and justify the Administration's claim of legal authority—as opposed to moral authority, or the authority that comes from having the raw power to do as it may please—to kill, unilaterally, American citizens. The Attorney General talked about a number of related topics as well—the prepared text of his remarks is here—but it is his discussion of Due Process of Law that has been bothering me in particular.
I am partial to Due Process. Personally, I think that the articulation of that particular principle is one of the greatest favors the Founders did for the nation in crafting the Bill of Rights. I also think that the version of Due Process articulated by the Attorney General turns that principle entirely on its head, then gives it a good shake to see if any loose change will fall out.
For the benefit of those who do not walk about day to day focusing on the structure and meaning of the Constitution—and honestly, even most lawyers have no cause to do that on a daily basis—here is an admittedly super-simplified summary of the law of Due Process and the ways in which it does not mean what the Attorney General and the Administration want us to think it means.
"Due Process of Law" comes to us via the Fifth Amendment, a jam-packed little amendment that has a great deal of substance stuffed in to its 108 words. Its best known element, the thing we mean when we speak of "taking the Fifth," is the prohibition on compelled self-incrimination, but there is a lot more to "the Fifth" than that. As with most of the Bill of Rights, the Fifth Amendment describes things that the federal Government cannot do, or can do only conditionally. Here is the whole thing, with the fifteen words that particularly concern us emphasized for the sake of emphasis:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
You might note, if you were in a noting mood, that the Amendment refers to the rights of "persons" generally, not only those persons who happen to be citizens of these United States. We will concern ourselves here with citizens, because "citizens" is the bare minimum of humanity entitled to consider itself among the "persons" entitled to the protections of The Fifth.
So then, what can your government do and when can it do it? It can deprive you, citizen, of your life, or of your liberty, or of your property. However, in order to deprive you of any of those things, the government must provide "due process of law."
And what is this "due process" of which the Amendment speaks? Risking tautology, we can say that it is the "process"—the procedures, the what, where, when and under which rules things are done —that is "due"—that is appropriate to the case or that, more importantly, is owing to the citizen whose life, liberty or property the government proposes to take. That last is important: due process of law is an obligation owed by the government to the person the government is going to deprive, not vice versa. Due process is not a game of solitaire; the government cannot play it alone.
The law surrounding due process has grown up around two central questions: First, is a particular government action one of the deprivations covered by the amendment, does it involve an interest that we can characterize as involving "life" or "property" or the particularly elusive "liberty"? If not, there is no need to move to the second question, the eternal question: "What process is due?"
The ne plus ultra of process that may be due is a full trial, in a court, with all of the procedural and evidentiary processes that that entails. And, in many cases, that is exactly what is required. But not in all. There are any number of impositions that the government is permitted without a full-on judicial process. For example, in the case of Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court concluded that a full evidentiary hearing is not required before terminating disability benefits (a property right) under the Social Security Act. The "process that was due" in that case was for the government to provide notification to the recipient, a statement of reasons why he was being deemed ineligible, and an opportunity to contest the decision through administrative processes after the benefits were withdrawn. (That's right: sometimes the process that is due is to mire the citizen in bureaucracy for a few years. But I digress.)
The basic rule of thumb is: the more important the thing the government proposes to take, the more elaborate the process that must be followed before the government can take it. This is one of the reasons why there are so many layers of trial, review, appeal, re-review, and so on, attendant to the administration of the death penalty: the action of the State in taking your life is so extreme, and so irremediable, that the most elaborate process is due before the final blow may be struck. Death, as a general matter, requires more process, not less, before it can be meted out.
In the majority opinion by Justice Powell, Mathews v. Eldridge states in simple terms the bare minimum process that may be due in any given case. No student paying the slightest attention in a Constitutional Law class can fail to emerge without this embedded in the brain: Due Process, at the most basic level, requires notice to the one whose interests will be impaired and a meaningful opportunity to be heard, at an appropriate time and place, as to why that impairment should not occur or why it should be set aside. Justice Powell:
The essence of due process is the requirement that 'a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.' Joint Anti-Fascist Comm. v. McGrath, 341 U.S., at 171-172, 71 S.Ct., at 649. (Frankfurter, J., concurring).
Mathews v. Eldridge, 424 U.S. 319, 348-49.
In his Northwestern speech, justifying the White House process of targeted killing based on closed door consultation with itself, the Attorney General said this:
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.
That last sentence is true—not every Constitutionally sufficient process requires that a court be involved—but it is also a dodge. Whether a court is involved or not, Due Process of Law requires some equivalent to the protections that a judicial process provides: a legally cognizable procedure that includes notice and an opportunity to be heard and in which the targeted citizen is a participant. Secret decisions, with secret participants examining (or claiming to have examined) evidence of unknown nature and provenance and applying undisclosed rules of decision, certainly constitute a sort of "process", but that process is the polar opposite of due process. In truth, it is a process designed to eliminate or evade the most basic protections of a citizen in a circumstance—imposition of a sentence of death—in which those protections should be heightened.
I tend to believe that the President, the Attorney General, and many more surrounding them are smart enough, and have the relevant training, to know perfectly well that due process has left the building in these cases. A very large portion of the population, likely even a majority, are entirely at ease with that: why, they ask sincerely, should we coddle evildoers by suggesting that they have constitutional rights at all? They're evildoers and deserve whatever they get, however they get it, right? Sentence first, verdict after!
Perhaps the President and the Attorney General are at ease with that as well, but I doubt it.
If they were truly untroubled by the proposition that "national security" is a universal constitutional solvent, and that no process is due before a surgical strike excises a presumed bad guy far from an actual battlefield, in a nation with which we are not at war and that is not under U.S. occupation, then why feel any compulsion to give a speech, as the Attorney General has done, erecting the semblance of due process? As Westley remarks to Count Rugen in The Princess Bride: "We are men of action, lies do not become us." If it is the position of this Administration that no process is due, the administration should just say so. Own it! and let history judge whether doing so is an act of courage or a semi-despotic "tearing up of the Constitution."
At this point, the perceptive reader will long since have deduced which of those this blawger thinks it is.
For further reading: Our Great Nation's busiest recovering blawger, Scott Greenfield, offered his own more cogent thoughts on this subject earlier this morning. As a criminal defense lawyer, he really does think about the Constitution and the Bill of Rights on a daily basis, so his opinions on such things are not to be sniffed at. Thanks to him for including the link to the Attorney General's full remarks, included at the outset of this post.