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What Process is Due?

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Friday, September 30, 2011 at 11:45 AM

A corollary to Bobby’s second point in this post is that it is not enough to say the words “due process” by way of denouncing the Al Aulaqi strike, as though those words represent a discussion-ending argument. One has to specify what process is due to someone being targeted in a particular circumstance before one concludes that the targeting violates due process. If targeting Al Aulaqi were really an assertion of the power to kill any U.S. citizen anywhere based on his speech, I would find it alarming indeed. But I am, in fact, quite certain that Bobby is correct that it is no such thing. I am sure that if the internal legal arguments emerged, they would reflect–and, indeed, those legal arguments that are public do reflect–a dramatically narrower assertion of the power to target a U.S. citizen, one with which I have no deep-seated discomfort.

Remember, this is a person who:

  1. is believed to be “part of” enemy forces within the meaning of the AUMF;
  2. has been on notice for a lengthy period of time that he is regarded as such, is clearly aware of that, and has not only not denied it but actively taunted U.S. forces about their inability to get him;
  3. has not made any attempt to surrender;
  4. is believed to be playing an active, operational role in attacks against the United States; and
  5. is camped out in a country that is unable to exercise civilian authority in the region in which he is located.
To insist that due process in such circumstances requires arrest and prosecution is to insist that due process requires tolerance of Al Aulaqi’s belligerency against us. Congress might, of course, attempt to create some alternative process to create oversight and judicial supervision of such targeting, but it has not done so. In the absence of any statutory framework, I am not uncomfortable with the notion that rigorous internal review of targeting decisions within the executive branch provides all of the process that is due. As I have argued before, Al Aulaqi had a option that would have removed him from the targeting list. He could have surrendered.
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