One brief (but significant) point that thus far has gone largely unnoticed in the wide coverage of yesterday’s speech by Attorney General Eric Holder is his invocation of the Supreme Court’s Mathews v. Eldridge balancing test for assessing how much process is due when government deprives individuals of life, liberty, or property.
It might help to start with how the Court itself has articulated the test. Specifically, Mathews held that courts should balance:
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.
Now here’s how Attorney General holder described it yesterday:
In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.
If you contrast the two passages, you’ll see what’s missing from the latter, i.e., the entire second factor–“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.” To my mind, this is a conspicuous (if not telling) omission. Whatever else one might say about the targeted killings debate in general, or the legal arguments in support of the government’s authority specifically, the Mathews test is designed to encourage the government to take all reasonable steps to minimize false positives, whether directly or indirectly. Indeed, I would have thought the Attorney General, in a speech about why due process is not necessarily judicial process, would have wanted to play up the ways in which the government already tries to minimize false positives (and why additional or substitute procedural safeguards wouldn’t add substantial value to the existing processes).
There’s a lot that can be said about allowing such a dramatic exercise of governmental power to turn on the Mathews test (some it was already said by Justice Scalia in Hamdi). But even for those who generally support the government’s power over individuals like Awlaki and/or use of the Mathews test as the relevant constitutional metric here, shouldn’t we (and, indeed, the Attorney General) be worried about false positives both for the obvious reason and also to bolster arguments that the government is exercising all possible care in wielding such a final and irrevocable power?