So am I. I really don’t understand the point of the discussion. Awhile ago, you said we were leaving behind the justiciability issue, but it seems to keep cropping up in almost every post of yours. Unless I misunderstand your point, which is entirely possible. It seems to me your only point is that since there may not be a remedy for a violation (not being able to sue because of standing or state secrets or Presidential immunity, or whatever else they are throwing out there), then somehow no violation occurs. I don’t think that’s correct. It’s perfectly possible to have the government violate someone’s constitutional rights and not have any remedy available.
If that’s not what you’re saying, then I’m fresh out of ideas how to help you.
I can’t speak for Hamlet(or Yorick for that matter), but I don’t see why it couldn’t be treated as extrajudicial killings in the line of duty for police officers are. When a police officer kills a suspect most departments have a review process which is triggered automatically. Clearly it wouldn’t be exactly the same, but every time a police officer unholsters their gun they know “someone will be breathing down my neck if I squeeze this trigger, I better not do it unless I know it was my only choice and can back that up in an inquest.” That’s what I want the people who are signing orders for hellfire missiles to rain down on people to feel. The electorate has voluntarily surrendered(temporarily) their sovereign rights to either these officials or the person(s) who appointed/confirmed them to act in their stead. It’s not possible to get 300,000,0000 citizens informed and organized to make a decision about sending a drone strike, but the person(s) they empower to do so on their behalf must still be accountable to those 300,000,000. If not then how can we possibly trust them?
Sure, sounds good, I guess. Maybe a dual investigation review including a review board (maybe a civilian review board) and reference of actions to the Attorney General (or a special attorney general since there is likely a conflict of interest). Maybe keep open the possibility of Congressional investigation or a civil suit.
But the problem is that in cases like Al Awlaki, there isn’t usually the time constraint that there is in police shootings. Usually in police shootings, it’s about 3 seconds to decide whether to shoot or not. I don’t see the same time constraints in a case like Al Awlaki, where the administration would have had months to get a warrant or a determination of combat battlefields.
Hamlet: I am asking genuine questions about your position concerning what due process requires, attempting to proceed with some caution as I evidently misunderstood it for some time there.
I think the critical two questions are these: (1) Does due process demand that such post hoc proceedings be available whenever the government kills a citizen putatively in self-defense or putatively on a battlefield, or just in some subset of those cases? (2) Is it your position that judges should determine what does and does not count as the battlefield for the purposes of the law of armed conflict?
I think the answers are “in all cases” and “yes,” respectively, but I wanted to make sure before proceeding.
AFAIK police departments generally do have an internal review process for such incidents. But this review process is not public, and is extremely deferential. Often the district attorney’s office is involved, but not necessarily, and they’re not exactly independent from the police in any event. Some cities have civilian review boards, but they are also, generally speaking, toothless. I’m not aware of anywhere that police killings are routinely the subject of legislative or judicial proceedings.
And, again AFAIK, no one considers this a due process problem or constitutional problem. It is a political problem. It’s not that we think city council or municipal court should routinely review police shootings sua sponte. Is that we think police officials should take these investigations seriously, and report malfeasance. I feel similarly about the regulation of targeted killings. We need to make sure to elect responsible leaders, since they wield such awesome force when it comes to military power.
See, I don’t understand that. The person is dead. Generally that means that the time for his rights to due process are past. It’s not like you can give notice, or hold a trial, or let a corpse cross examine witnesses. Now if you’re going for the due process to whomever wants to raise suit against the government, that’s another issue. And an irrelevant one at that.
Maybe I’m woefully uninformed, and if so, you could help me out. Has there been any caselaw about having someone having due process rights after that someone is dead? I think in a vast majority of cases, whatever rights that person has already been either violated or not.
Again, I’m not trying to be obstreperous, but I don’t understand what you’re asking. Using our dead guy in police self-defense, the determination courts and hearing boards are making is whether or not the shooting violated his rights to due process (or more properly to be free of seizure too, but that’s another irrelevant tangent). The court doesn’t, to my limited knowledge, determine that a dead person’s rights to due process are violated by the lack of court hearings afterward.
As I answered pages ago: “Same for the who gets to decide most constitutional issues. All three branches of government. For example, President Bush determined that the AUMF (from Congress) authorized him to hold foreign nationals in US territory without having to extend any Constitutional protections to them. He fought very hard to make sure the judiciary didn’t get to decide the issue either.” So, yes, along with the other branches, the judiciary in reaching a decision may have to decide what counts as a combat battlefield.
The people who sue may think it is a due process issue. But to go back to my misunderstand, the time of determination of due process rights is when the guy is killed. “Did the killing violate his due process rights” is the question, not “does not having automatic review of the killing violate his due process rights”. So, again, I’m confused.
You and me both. You earlier said you agreed that no process is due prior to the killing in the event the executive unilaterally determines an exception applies. Now you seem to be rejecting that premise–anticipating some of the arguments I was going to make against it (namely, that it doesn’t make much sense to talk about post-deprivation review in the context of death). So I’m completely lost as to your position.
What you now seem to be saying is that you want post hoc review of whether pre-killing review was necessary. That’s a pretty important difference from the earlier-articulated position.
Given the mass confusion, maybe we’d best leave it here and pick this up again on a fresh slate another time.
I did? I certainly didn’t mean that, if that’s the impression you got. When we were discussing the “exceptions” to the due process clause, I didn’t mean that the people weren’t entitled to due process, only that they’re not going to get pre-determination hearings. The police officer won’t get a warrant before shooting the dangerous felon. The guy in a convoy in WWII isn’t going to not be bombed because he’s an American. These guys aren’t getting a pre-action hearing on due process, but they’re still entitled to due process. It’s just in those occasions, the determination of the status of their due process rights is generally done after, not before. The victim’s rights may have been violated, they may not have been. But they didn’t just disappear.
If the President believes a certain individual–a U.S. citizen–is lawful target under the law of armed conflict (i.e., is on a battlefield, and the other requirements), must he resort to any judicial process before killing that person? I think we agree the answer is no.
The next question was what kind of judicial procedure must be made available to determine whether the President’s assessment was correct. Or, in other words, what does due process require with respect to post hoc review of the application of an exception to due process?
To understand your position on that second question, I asked “Does due process demand that such post hoc proceedings be available whenever the government kills a citizen putatively in self-defense or putatively on a battlefield, or just in some subset of those cases?” In other words, must some judicial review of the application of the exception be made available in all cases in order to satisfy the Constitution? Or just some subset?
Your answer seemed to misunderstand the question, saying “The person is dead. Generally that means that the time for his rights to due process are past. It’s not like you can give notice, or hold a trial, or let a corpse cross examine witnesses. Now if you’re going for the due process to whomever wants to raise suit against the government, that’s another issue. And an irrelevant one at that.”
Do you see now why that answer misunderstands the nature of the inquiry?
So going back to my question, do you think the Constitution compels that there be judicial review available for the determination of whether an exception to due process was appropriately applied in every case in which an exception is applied, or just some?
You all know my position on this matter, but it seems to me that having a post-attack review of whether someone was a valid target is just completely useless. I can’t imagine that serving the interest of anyone: advocates of due process would probably see it as a half-measure of closing the gate after the horse has escaped; advocates of the war power would find the process as Monday morning quarterbacking, that is, substantively worthless and potentially embarrassing.
“If a police officer believes a certain individual–a U.S. citizen–is an imminent threat under the deadly force requirements, must he resort to any judicial process before killing that person?”
The answer is no. But only because of time constraints. Because there isn’t enough time, decisions like whether the police officer’s belief was reasonable, the victim was or was not an imminent threat, and the victim’s constitutional rights were or were not violated.
The answer to the President’s question is … it depends. Is the President’s determination that the target is an imminent threat reasonable? Is the President’s determination that the the target is on a combat battlefield correct? Is the President’s evidence against the guy valid? These are questions that should be answered well before he kills a US citizen.
That’s one of the reason there is a preference in the law for pre-action review. That’s why we have warrants, to make sure there is a judicial decision made before the action is taken. That is the preference we should have before the President decides to kill a US citizen. And I’ve seen nothing to indicate that the President doesn’t have time to get that information for review before killing. How long was Al Awlaki on the kill list before they got him? Nowhere in that time period could Obama have not gone and gotten his decision judicially reviewed?
Without that pre-action approval, the issue of whether or not the target receives due process is much more difficult and the damage if the answer to that question is no, is so much worse, he’s dead. Maybe the President is right. Maybe Al Awlaki was an imminent threat (I don’t see any reason to believe his threat was imminent), was on a combat battlefield (I don’t think Yemen fits, but there is an argument that the entire world should be considered a battlefield), and he received due process (Holder tells us he did). But I’d feel a helluva lot better, and the Constitution would be better served, if we had some judicial oversight of the President’s decision before he kills US citizens.
As to the requirements of due process after the person is dead, I’m still not seeing how that works. By the time you’re there, the individual target’s due process rights were, along with himself, terminated. I don’t see how he has any due process rights into a post-death hearing.
But if you’re asking should there be a post-targeted killing review, my answer would be yes, but I don’t see how it fits into the due process discussion we were having. It’s not bringing anyone back from the dead, though and the time for review of the President’s determination (barring the imminent threat like the police officer) is before the target is killed, not afterward.
We’re going in circles, but I’m game to keep going.
What I think you’re now saying is that a citizen’s due process rights are not violated by the state taking his life without prior judicial process if two things are true: (1) an exception to due process applies; and (2) there isn’t sufficient time for a court to review the applicability of that exception.
So, in your view, if we know on Monday that a Nazi convoy containing a U.S. citizen will be traveling along a certain road in allied France on Friday (or two months from now, depending on where the imminence line is), then the President must go to court to get a determination that allied France is part of the battlefield. Is that right?
I have some follow-up questions, but I want to make sure I have your position correct so far.
Roughly, yes. Without nuance or regard for years of due process and 4th amendment litigation and the detailed analysis of a case by case basis, we’ll go with that.
Was there really any doubt that allied France was a battlefield? Was it a close call? Was there doubt in the declaration of war? Is there any doubt whatsoever in anyone’s mind that that wasn’t a combat battlezone? Is the US citizen the target of the strike? Is this a targeted bombing, meant to kill this US citizen?
I know you’re really trying to get an orange and call it an apple, but I’m quickly growing tired of these games.
(1) an exception to due process applies; and
(2) there isn’t sufficient time for a court to review the applicability of that exception; and
(3) there is “really doubt” about whether the exception really applies.
You seem to be working under the impression that the due process clause means the same thing in every circumstance, which simply isn’t true. Move the US citizen from the train in France to a church in Toronto Canada and is the answer the same? Make him a stowaway and the train is full of the Nazi high command. Move him from surrounded by Nazi’s to being surrounded by Thomas Dewey and friends and is the answer the same? Even Roosevelt, with all his war powers, gave US citizens caught in the US as spies a military trial instead of bombing them.
Not to derail your hypotheticalapooza, but as Holder said in discussing the Al Awlaki killing (you know that, the topic of the thread? The issue at hand? Ring any bells?): “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.”
There’s a difference between Matthews v. Eldrige and ad hoc invention of what process is to apply. Obviously, my effort to discover your position on the general principles concerning exceptions to due process using hypotheticals isn’t working. So I guess I’ll leave you to your own devices to try to articulate your position on the subject, if it actually exists.
The fundamental question, in my mind, is whether the Al Awlaki killing should be treated differently from killing a U.S. citizen believed to be a terrorist in Kandahar, or the U.S. Nazi in Allied France. Your efforts to distinguish the Al Awlaki killing from other putative battlefield killings, to the extent you have been able to articulate them at all, are unpersuasive. Either they do not actually distinguish the two scenarios, or they are completely impractical as a legal concept (i.e., whether people *really *doubt whether the battlefield extends to a certain place).
If you cannot clearly distinguish those scenarios, then you have no basis for believing that prior judicial process applies in one case and not the other.
“If it actually exists?” Really? I’ve repeated it for 5 pages, if you can’t fathom it, that’s on you, not me. I know it’s rough to deal with the fact that due process (and 4th Amendment law) aren’t completely black and white, but I figured that it would be much easier for a fellow lawyer to grasp that. Apparently that’s my bad.
You realize this is roughly your 4th different “fundamental question”, don’t you?
And yes, people in different positions are treated differently, which is well recognized by courts. I’ve given you Holder’s quote, I can give you quotes from Reid v. Covert or Matthews if you like also.
That is only true if you believe that there aren’t differing standards for the determination of due process rights. And for that to be true, you’d have to ignore a great deal of precedent. And that doesn’t change no matter how many hypotheticals you try and throw at it.
You don’t understand the difference between flexible principles and ad hoc principles. In the former, the difference in facts has to be connected back to the principle and the different result explained in terms of that interaction. In the latter, you just start anew each time ignoring the results in other circumstances.
No, they’re all the same issue, actually, differently worded in various efforts to get you to understand my position.
The government is also not going to disclose anything that might lead to the delegitimizing of it’s authority in the eyes of the public to wage drone warfare on citizens abroad. So I can say, with just as much evidence that you have, that the U.S. government doesn’t have a shred of evidence that al-Awlaki was planning attacks on the U.S. or it’s citizens.
The reporting on al-Awlaki does no such thing. As you mention, the reporting does nothing more than parrot information from government sources. Without these sources being named, we have no idea if they’re reliable.
This is a dangerous line of thought. If a post-attack review of a case reveals that the government is killing people willy-nilly, it could delegitimize the policy in the eyes of the public. Embarassing the government is one of the few ways to actually change policy, that is why they go to such lengths to keep their errors hidden.