A couple of weeks ago, while many were arguing over the correct interpretation of the Second Amendment, the Due Process Clause became a victim of drone strikes.
Two weeks ago NBC News managed to get a hold of a Justice Department white paper detailing the legal justification for killing Americans who are members of al-Qaida. The 16-page paper goes to great lengths to support the decision to deliberately kill Americans working for al-Qaida and its affiliates by citing the right to national self-defense and legal precedents. These processes and interpretations I have laid out above set a disturbing precedent for our due process rights.
The paper lays out certain qualifications that are meant to take the place of due process for a U.S. citizen who might be a target of these attacks. We are expected to trust that these three qualifications provide appropriate limitations to the government’s use of force against citizens. However, the three qualifications are vague towards important definitions and processes.
For example, a well-informed, high-level government official must determine the target poses an imminent threat before he is targeted, but how high on the food chain is a “high-level government official?” And how does one determine an “imminent threat” to the nation? Instead of ironclad steps, these three qualifications are more like a vague checklist that could be easily manipulated by subjective reasoning.
Another shaky support underlying this memo is the argument that due process can be overruled in the name of national self-defense. The white paper makes the comparison with a policeman who has the right to use deadly force when a criminal threatens him with violence. But the scenarios are fundamentally different. For the policeman, the criminal is physically nearby, presumably threatening him with a gun or someone else; the threat is literally imminent. For the government’s scenario, the threat is assumed imminent.
What if we look at the example in another way?
How many times have we seen on the news that another innocent person has been shot because a policeman perceived a threat that never materialized or never existed? Assuming a threat can have unnecessarily fatal outcomes.
Our Constitution guarantees us the right to due process of law, meaning we are afforded all the rights, guarantees and protections given to us by the Constitution before we can be deprived of life, liberty or property. Drone strikes ordered against Americans without trial, no matter how repulsive their affiliations, are certainly a violation of this right.
Setting this precedent far outweighs the supposed short-term benefits of being able to kill American members of al-Qaida with impunity. Future administrations can often mold and reinterpret old precedents to fit their situation and justify their ends, regardless of the original context. The obvious fear is that some future government would use the precedent set down by this white paper to justify the killing of Americans without trial as a repressive measure. It may be a bit far-fetched, but it is one we have to consider.
I encourage my fellow UD students to read the Justice Department’s white paper so they can understand the Obama administrations justifications for ordering drone strikes on Americans and learn about this dangerous precedent for future generations.