Obama’s drone attack on your due process
The non sequitur is breathtaking. Awlaki wouldn’t receive notice, the opportunity to be heard or a hearing before a decision maker. In other words, he would receive none of the components of traditional due process — not even one. How the absence of due process could be magically transformed into its satisfaction is never stated or explained. All we get is the assertion that a target’s interest in life must be “balanced against” the government’s interest in protecting other Americans. On this theory, no due process would be due to those accused of murder, because their lives would have to be balanced against the government’s interest in protecting their potential victims.
The cases cited by the white paper provide no precedent for the idea that due process could be satisfied by some secret, internal process within the executive branch — not that any such process is even mentioned. The reason they don’t is obvious: There is no such precedent. Never, to my knowledge, in the history of due process jurisprudence, has a court said that a neutral decision maker wasn’t necessary. And as Justice Felix Frankfurter wrote in language cited in the Mathews case, “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.”…
The white paper should have said that due process doesn’t apply on the battlefield. By instead making due process into a rubber stamp, the administration is ignoring precedent and subverting the idea of the rule of law. When is some law worse than none? When that law is so watered down that it loses the meaning it has had for 800 years.
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In the real world, ‘due process’ is any official process, until the Court says it isn’t.
PersonFromPorlock on February 10, 2013 at 1:34 PM
I do think if the government is going to target US citizens that some sort of formal notification, however defined, is at least needed. If the targetting is of senior leaders, I don’t think a public statement would harm national security.
As to a “neutral decision maker”: have statutory changes codifying the requirements. That should satisfy due process requirements. Then we can have Congressional oversight to monitor any potential abuses.
Next case.
It’s good to be the king. Even if it’s just on the internet.
SteveMG on February 10, 2013 at 1:35 PM
Thread-winning comment at the link:
Del Dolemonte on February 10, 2013 at 1:35 PM
“Due process” is just a process that you “do.” Duh /
Firefly_76 on February 10, 2013 at 1:42 PM
http://pjmedia.com/tatler/2013/02/08/pro-taliban-terrorist-tries-to-blow-up-oakland-bank-and-blame-it-on-the-right-to-start-civil-war/
davidk on February 10, 2013 at 1:46 PM
I agree with this. This has nothing to do with due process until Awlaki is in custody. Until then he’s just another target. Trying to treat this as a law enforcement problem creates significant difficulties with the ability to wage war, and helps to expand government power by cross-applying military necessity into the domestic legal realm.
If Awlaki had wanted a hearing he could have surrendered himself at any American embassy or consulate in the world or any European one for that matter. He didn’t.
sharrukin on February 10, 2013 at 1:52 PM
When it comes down to it, really, this is not a drone attack on due process, it’s a denial that the concept of due process exists at all. To discuss it in the narrow terms of treason or run-of-the-mill murder confines Obama’s perspective of his duty to protect other Americans too much to this specific case.
Wasn’t it just days ago that the WH was selling the idea that Republicans want to kill Americans with their spending cuts? Those Americans need protection too, you know, and Obama will be more than willing to apply his unique view of due process in order to do it if the time is right.
And you won’t know when it’s coming.
Dusty on February 10, 2013 at 1:52 PM
http://4.bp.blogspot.com/-iOprMYonNKk/URXFjZ6fijI/AAAAAAAAU3s/5dB1S5nuF4M/s400/ban_guns_from_liberals.jpg
davidk on February 10, 2013 at 1:53 PM
So it would have been all right to knock off Goebbels during one of his broadcasts, but outrageous to shoot Ezra Pound or Tokyo Rose during one of theirs?
Well, so long as we’re clearing a path to citizenship.
Seth Halpern on February 10, 2013 at 1:53 PM
davidk on February 10, 2013 at 1:59 PM
Bah, one can hold a trial in absentia. I don’t fault even the devil for not wanting to walk into a court with this Messiah on the throne.
Dusty on February 10, 2013 at 2:00 PM
Trial in absentia is illegal as is removing citizenship involuntarily.
http://en.wikipedia.org/wiki/In_absentia#Under_United_States_law
For more than 100 years, courts in the United States have held that, according to the United States Constitution, a criminal defendant’s right to appear in person at their trial, as a matter of due process, is protected under the Fifth, Sixth, and Fourteenth Amendments.
sharrukin on February 10, 2013 at 2:04 PM
[Seth Halpern on February 10, 2013 at 1:53 PM]
It would have been outrageous to do so without at least first stripping them of their citizenship via due process.
I want decisions made where, when the facts are presented, lying your a$$ off is a crime. It isn’t when the lies are made through news papers and television.
Dusty on February 10, 2013 at 2:05 PM
Trial in absentia is illegal as is removing citizenship involuntarily.
[sharrukin on February 10, 2013 at 2:04 PM]
As for the former, it is not illegal. The defendant can waive facing his accuser, he can still appoint council for his defense or have one appointed for him. Facing your accuser is a right and one cannot be forced to exercise his right.
Removing citizenship involuntarily is not illegal either. In fact, there is a process for doing so already.
Dusty on February 10, 2013 at 2:10 PM
http://www.captainsjournal.com/2013/02/08/the-most-accurate-gun-poll-in-america/
davidk on February 10, 2013 at 2:15 PM
davidk on February 10, 2013 at 2:19 PM
The genuinely stupid and ignorant Americans, democrats, are cool with all of this because they believe that Obama is one of them. Obama would yell allahu ackbar while sawing off Joe UAW’s head without flinching.
fking morons
tom daschle concerned on February 10, 2013 at 2:22 PM
[Dusty on February 10, 2013 at 2:10 PM]
I take the former back. I did not look at your wiki link before commenting, but relied on other sites which were only general in nature and referred cases wherein it was allowed. Those happened to be ones during war and I felt satisfied with that argument. Thanks for the link.
As for removing citizenship, there are provisions US code now, which I’m pretty sure covers natural born citizens. It’s a process initiated by the State Department. I don’t know whether that has been tested.
Dusty on February 10, 2013 at 2:25 PM
[Dusty on February 10, 2013 at 2:25 PM]
That should have been addressed to:
(Attempting to research and comment while trying to make banana bread isn’t all that successful with the banana bread, either.)
Dusty on February 10, 2013 at 2:30 PM
You have to be in court to waive that right.
http://en.wikipedia.org/wiki/In_absentia
The Court unanimously held, in an opinion written by Justice Harry Blackmun, that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.
Afroyim v. Rusk
http://en.wikipedia.org/wiki/Afroyim_v._Rusk
As a consequence of revised policies adopted in 1990 by the United States Department of State, it is now (in the words of one expert) “virtually impossible to lose American citizenship without formally and expressly renouncing it.”
sharrukin on February 10, 2013 at 2:30 PM
No problem.
I thought the same until I looked into it and found out how difficult if not impossible it is.
sharrukin on February 10, 2013 at 2:34 PM
@Dusty: Isn’t citizenship beside the point if due process accrues to any “person?” Either someone not in custody has a right to it, or not. If not, and we kill him, any objections must be framed on some other human-rights ground.
Seth Halpern on February 10, 2013 at 2:50 PM
Obama uber alles!!
Dr. Carlo Lombardi on February 10, 2013 at 3:12 PM
Check out J.E. Dyer’s analysis of the problem.
As usual, she looks at things from a different angle, with illuminating results.
AesopFan on February 10, 2013 at 6:32 PM
AesopFan on February 10, 2013 at 6:34 PM