Advancing a Free Society

On Due Process and Targeting Citizens

Saturday, October 1, 2011

The Washington Post leads this morning with a story headlined “Secret U.S. Memo Sanctioned Killing of Aulaqi,” which opens:

The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials.

The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.

While there was no dissent within the administration, however, critics of the operation decry its lack of due process. And, meanwhile, asenior administration lawyer with whom I corresponded yesterday suggests that the operation is legal on the same grounds that it was legal to target Admiral Yamamoto during World War II or would have been lawful to target a U.S. national who had joined up with the German army. The implication here is that the U.S. national is no different from the foreign national once he has signed up with the enemy.

All of this raises the question of what precisely due process requires with respect to the targeting of a U.S. national fighting on the other side of this conflict. Bobby, Jack, and I all addressed this question yesterday, mostly by negative inference; by saying why the strike did not violate due process, that is, we hinted at some due process standards. But I think it’s worth laying out in more detail exactly what–at least in my opinion–the Due Process Clause really requires here. So here is my best guess at what that secret memo probably said–or at least, my view of what it should have said.

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