Four years ago (as of yesterday), David Barron, then Acting Assistant Attorney General and chief of the Office of Legal Counsel finalized his memorandum to the Attorney General RE: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations against Shaykh Anwar al-Aulaqi.
After being kept secret, the document was released last month. Some redacting does not undermine the integrity of the analysis. If you regularly read this blog, you ought take the time to read the memorandum. The link above will give you a pdf.
The US Court of Appeals for the Second Circuit made the document public in June as part of a court case. The Department of Justice did not contest the memo’s release as part of an effort to ease confirmation of Mr. Barron’s appointment to the First Circuit Court of Appeals. HLSWatch previously linked to the document but this is our first comment.
Mr. Barron — now Judge Barron — asks, is it an unlawful killing for a U.S. public authority to take premeditated lethal action against this specific U.S. national (Anwar al-Aulaqi) outside the territory of the United States when not in the heat of immediate combat?
No, the memorandum counsels, it would not be an unlawful killing. In the particular case of Anwar al-Aulaqi in mid-2010, given the preponderance of evidence, lethal action would be a reasonable act of self-defense undertaken in accordance with the law of war, not contrary to federal statutes, and consistent with the constitutional authority of the President in this case amplified by specific Congressional action.
The US-born self-proclaimed prophet of violent action against the United States was killed in a drone attack on September 30, 2011.
Does the question as posed above appropriately frame the legal context of the President’s decision to kill Anwar al-Aulaqi?
It is not inappropriate. But it is not necessarily dispositive.
Another question: Is secret deliberation by the Executive sufficient to fulfill the due process rights of citizens under the Constitution?
I perceive that secret processes undertaken only by the Executive, no matter how rigorous, do not meet an acceptable constitutional threshold for due process. Reading this once-secret memorandum reinforces my predisposition. While I can gin-up arguments against some specific findings of the memorandum, the legal and constitutional analysis is balanced and largely persuasive. If these findings had been made public in 2010 I would have almost certainly supported the findings and subsequent killing if part of a broader process of legal engagement.
It is the Executive exercising unilateral lethal power in secret that gives me profound pause. What can be undertaken in secret tempts authority to arbitrary and arrogant acts. The more elaborate and clinical the secret procedure the more it ends up smelling of attainder: guilt established by procedural writ rather than substantive findings.
In the case of al-Alaqi, I see no good cause for secrecy. His criminal behavior was notorious as early as 2006. He was known and known to be known. There were many good reasons to publicly proclaim this citizen as “outlaw”.
I can, however, imagine other cases where there is cause for authorities to not signal they are aware and watching. When there is a compelling case for secrecy in taking premeditated, carefully planned lethal operations against a citizen, it is then even more important the decision not be left to the Executive alone. The soon-to-be 800 years since the Magna Carta offer diverse methods for discrete due process. For several examples and thoughtful consideration, please see Due Process in the American Identity by Cassandra Burke Robertson.
Some readers — not unreasonably — will conclude from the 580 prior words that I am a co-conspirator in what Philip Bobbitt has called the “due process explosion” of the last generation. What do you want, I can hear you ask, a JAG officer assigned to every platoon? DHS General Counsel staff in jackboots and camouflage?
A joke that lawyers tell lawyers: What is the only place where due process is consistently and completely achieved? The answer: Hell. Ironic humor benefits from personal experience.
In his ultimately influential dissent in Poe v. Ullman, Justice Harlan argued:
Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.
In what many of us perceive will be a long-struggle with violent and shadowy adversaries, abetted by prolific opportunities for mayhem emerging of modern technologies, and often involving or implicating our neighbors, families, and ourselves, there is a need to renew the tradition or at least be mindful of what we are choosing to break with.
To its credit and as it ought, the Executive has been diligent in this task. The Judiciary is being responsive when called upon. It is the Legislature that seems mostly absent in renewing due process for our contemporary challenges.
You probably saw the public opinion polls showing attitudes toward Congress at historic lows. By design the Legislative branch is most reflective of the whole people. To make progress on due process — and other issues — it might be worth looking in the mirror and to your left and right. Might even be worth talking to yourself… but especially talking to your left and right.