or, you can't have your cake and eat it too.

Jeff Powell, a law professor at Duke, served in both the Clinton and Obama administrations in the Office of Legal Counsel:

Deputy Assistant Attorney General (or designate), Office of Legal Counsel, United States Department of Justice (6/93 - 6/94, 1/96 - 7/96);

Principal Deputy Solicitor General, United States Department of Justice (7/96 - 9/96);

Special Government Employee, Office of Legal Counsel, United States Department of Justice (6/94 - 12/95, 9/96 - 1/2000);

Deputy Assistant Attorney General, Office of Legal Counsel, United States Department of Justice (6/2011 - 4/2012).
In his Lawfare guest post of today, Jeff Powell on Targeted Killing and Due Process, he addresses one facet of a multi-dimensional problem: the growing efforts to displace traditional military law with "due process" and "human rights" principles. Those efforts go beyond "legalities" to alteration of language itself - e.g., "small wars" become "humanitarian interventions".

But, enough of my rants, and on to Powell's three key paragraphs (with key sentences bolded by me):

It takes only a moment’s reflection to see that the President’s laudable procedures for imposing “strong oversight” over targeting decisions are worlds apart from Hamdi’s “essential constitutional promises” – indeed, it is hard to imagine how a military decision about attacking an enemy combatant could be otherwise. Of course the White Paper does not propose that potential targets be given notice of the government’s possible interest in killing them. Of course it does not contemplate, much less require, that a targeted individual be heard at any time or in any manner as to why the government is mistaken about his identity or activities. Of course it does not provide for a neutral and detached decisionmaker to resolve any factual uncertainty: the ultimate decisionmaker here is the President in his capacity as commander in chief, who (we should hope) is not in the least neutral or detached in carrying out his responsibility for national security. Calling the executive’s own procedures the due process that is meant to check arbitrary executive decisions isn’t merely an erosion of the “essential constitutional promises” but their wholesale repudiation. If Mr. Awlaki was entitled to due process, then his killing violated the Constitution.

Since due process doesn’t apply to a US military decision, in a situation of actual and authorized hostilities, to attack a member of the enemy’s forces who is a legitimate target under the law of war, the Constitution was not in fact violated. But my concern here is to identify the patent error in the White Paper’s and the President’s thinking about due process, because that error is likely to confuse our thinking about the wisdom and morality of targeted killing. The decision to kill a known, identified human being is a brutal one, the action of doing so is ugly to think about, even apart from the fact that sometimes other people die (as Mr. Obama acknowledged with sorrow). This brutality and ugliness are part of the grim reality of war. When we pretend to ourselves that our procedures for making such decisions satisfies the constitutional requirements of due process, we cast a veil of civility and even humanity over something that is inherently violent and dehumanizing.

I am not a pacifist, and I accept that the brutality of war is sometimes unavoidable. But the law’s antiseptic language about the weighing and balancing of interests according to “the traditional due process analysis” that supplies the legal “framework for assessing the process due a U.S. citizen” (I quote from the White Paper) masks, in a deeply misleading fashion, the brutality, the terror and the violence of war – even if we are right to conclude that we should take lethal action against our enemies. It serves no good purpose for the President and his advisors, or for any of us as citizens, to pretend that targeted killing is or can be anything other than the brutality it is.
Less lethal areas are even more prone to admixtures of military and civilian law - searches, for example (and, the issues of electronic surveillance).

Regards

Mike