Targeted Killing

The White Paper and Due Process

By Trevor Morrison
Thursday, February 7, 2013, 7:53 PM

The problems that Rick recently identified with how both the DOJ White Paper and its critics treat the concept of "imminence"  --- specifically, that they are borrowing a concept generated in a domestic law context that depends on a set of institutions and structures that don’t exist in the international sphere, without acknowledging the problems with doing so --- parallels an issue in the White Paper's discussion of due process.  I think the issue has gone largely overlooked on the due process side.  I want to lay it out here.       

As everyone knows by now, the White Paper's due process analysis is structured around the balancing test articulated in Mathews v. Eldridge, 424 U.S. 319 (1976).  That is understandable, in the sense that Mathews is widely understood to provide the general-purpose due process balancing test in the domestic context.  The problem, though, is that the White Paper fails to acknowledge the broader doctrinal framework within which the Mathews test exists, and fails to recognize the specific role that the Mathews test typically plays within that larger framework.  In the domestic context, it has long been established that the core of procedural due process is notice and an opportunity to be heard before an impartial decisionmaker.  See, e.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972) ("For more than a century the central meaning of procedural due process has been clear:  'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.'" (quoting Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1864)).  The Court recognized this in Mathews itself, see 424 U.S. at 333-34, and it has reiterated the point many times since Mathews.  See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)

Mathews has never been a means of evading this constitutional core of procedural due process.  It does not provide a means of deciding whether a given individual is entitled to notice and an opportunity to be heard before an impartial tribunal.  Instead, it provides a way to determine how to satisfy those requirements in any given case.  What kind of notice suffices?  Must the opportunity to be heard include a live hearing?  Must it take place before the deprivation first takes place (in the case of property infringements, for example)?  And so on. 

The White Paper mentions none of this. 

Instead, the White Paper suggests that Mathews is an established way of determining, from the ground up, what due process looks like in a given context, without being tethered to the organizing principles of notice and opportunity to be heard.  In so doing, the White Paper fundamentally changes the role of the Mathews analysis (and may make it incoherent in doing so), but without acknowledging it.   

Here's where the parallels to Rick's point start to emerge.  Had the White Paper acknowledged what is ordinarily entailed in saying that constitutional due process applies --- that is, had it acknowledged that, under existing doctrine, this means requiring notice and opportunity to be heard before an impartial decisionmaker --- it would immediately have had to confront the great difficulty of applying the domestic constitutional law of procedural due process to the very different context of an armed conflict abroad.  The Supreme Court's due process doctrine is the product of litigated controversies involving domestic interactions between individuals and the state, against the backdrop of the institutional arrangements that make up the domestic legal system.  The use of military or other war-like force in an armed conflict is, to put it mildly, a radically different context.

To be clear, I am not saying that the White Paper was wrong to assume that constitutional due process applies to the targeting of a U.S. citizen in an armed conflict abroad.  Nor am I necessarily saying that the targeting of al-Awlaki violated his due process rights.  Instead, I am suggesting that the context within which the Court's constitutional due process doctrine has been generated is sufficiently different from the context of a military action in an armed conflict overseas that we should not take for granted that doctrine generated in the former context can sensibly be applied in any straightforward way in the latter.  The Fifth Amendment might apply, but the Supreme Court's explication of its meaning in the domestic context might not. 

Of course, that would leave the government with a big challenge.  Figuring out what constitutional due process might mean in the context of an armed conflict abroad is very difficult, to say the least.  But it would be better to confront that challenge head-on than to ignore just enough of the details of the domestic doctrine to be able to pretend that the remaining doctrine can be straightforwardly applied to this radically different context.

I suppose one might try to deal with all this by arguing that the notice and opportunity-to-be-heard requirements can be applied in this context, and that al-Awlaki received plenty of both before he was killed.  It was public knowledge that he was on a "target" list of some kind, and if he wanted to contest that determination he could perhaps have turned himself in.  I am inclined to think that such arguments contort notice and opportunity to be heard beyond the point of plausibility, and that it would be better to re-think whether those really are the core values due process should be thought to serve in this context.  But even this discussion would be an improvement on what the White Paper provides on this point, which is nothing.