by Stephen Vladeck, Professor of Law and Associate Dean for Scholarship, Washington College of Law, American University
The more that I grapple with the so-called “white paper” prepared by the Department of Justice to provide at least some overview of the legal rationale behind the targeted killing of U.S. citizen terrorism suspects such as Anwar al-Awlaki, the more I’m reminded of Justice Robert Jackson’s dissenting opinion in the Mezei case -- decided in March 1953 at the height of the Cold War. As Jackson there explained:
Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices.
Although Jackson lost in Mezei, his understanding of due process eventually became hard-wired into the Supreme Court’s due process jurisprudence, culminating in a number of decisions in the 1970s in which the Court recognized that the heart of the Due Process Clause was an individual’s entitlement to a hearing before a neutral decision maker.
Although the Supreme Court justices often divided as to just when that right arose or what other process it required, they were unanimously of the view that, as Justice Powell explained in 1976, “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” To that end, the Court in Mathews v. Eldridge articulated the now-famous three-factor balancing test, pursuant to which courts are tasked with balancing three distinct factors in ascertaining whether the government has afforded sufficient process before acting against individuals:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
And although the Mathews test has not gone un-criticized, no one disputes the basic principle animating it -- that the Due Process Clause, though flexible in its scope, requires in all cases the most process that can reasonably be provided under the circumstances in order to both accommodate the competing interests and minimize false positives. More to the point, although such procedural protections should be provided by the government on its own either ex ante or ex post, Mathews and its progeny drive home the conclusion that it is ultimately up to the courts to decide after the fact whether sufficient process was in fact received.
Contrast that with the argument at the heart of the targeted killings white paper: The paper argues that the Due Process Clause does not categorically prohibit lethal operations -- and that’s clearly true. But then it quotes the Supreme Court’s discussion of Mathews in Hamdi v. Rumsfeld as follows:
The [Hamdi] Court explained that the “process due in any given instance is determined by weighing ‘the private interest that will be affected by the official action’ against the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing greater process. The due process balancing analysis applied to determine the Fifth Amendment rights of a U.S. citizen with respect to law-of-war detention [as in Hamdi]supplies the framework for assessing the process due a U.S. citizen who is a senior operational leader of an enemy force planning violent attacks against Americans before he is subjected to lethal targeting.
The problem with this reasoning is two-fold. First, it wholly neglects the second Mathews factor -- i.e., “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Indeed, the very next sentence of Justice O’Connor’s plurality opinion in Hamdi after the one quoted in the passage above specifically emphasized that “[t]he Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of ‘the risk of an erroneous deprivation’ of the private interest if the process were reduced and the ‘probable value, if any, of additional or substitute procedural safeguards.’” (emphasis added). In other words, the white paper decouples the false-positive concern from the balancing approach, implying that all that the Due Process Clause requires in the context of national security is for the relevant decision maker to decide whether a balancing of the interests militates in favor of greater or lesser process, without any regard to the costs and benefits of either.
Second, and more fundamentally, the white paper never explains how it gets from this understanding of the Mathews test (perverted though it may be) to Attorney General Eric Holder’s controversial suggestion at a speech at Northwestern University Law School last March that “‘[d]ue process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.” Indeed, the very next line of Holder’s speech was emphatic that “[t]he Constitution guarantees due process, not judicial process,” and yet none of the white paper’s due process analysis remotely supports that conclusion. Instead, the white paper’s argument against judicial review comes buried toward the end (see page 10), in a cryptic discussion of the political question doctrine (and not the Due Process Clause) the flaws of which I’ve already documented elsewhere.
This omission is more than just an oversight; it is the central flaw in the government’s position with regard to targeted killings of U.S. citizens. After all, rhetoric aside, the real question is not whether there are any circumstances in which the government is allowed to use deadly force against its own citizens; clearly, the answer to that question is yes. Rather, the question is whether, when such force is used, we as a nation can be sure that those exceptional circumstances were present. Of course, the government will always say that the answer is yes, but as Justice Jackson concluded in Mezei, “Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.”
Or, put another way, trust, but verify.