Department of Justice defends killing American terrorists
A Justice Department memo released on Monday says that the U.S. government can authorize the killing of American citizens overseas if it is believed they are “a senior, operational leader” of al-Qaeda or one of its affiliates, and is an “imminent threat” to the United States. The memo is sure to be one of the topics during the confirmation hearing of John Brennan, President Obama’s nominee as the next director of the CIA. Boston University School of Law professor Robert Sloane, an authority on human rights and international criminal law, offers the following opinion piece:
In Hamdi v. Rumsfeld, a plurality of the Supreme Court held that before the executive may detain a U.S. citizen as an ‘enemy combatant’ or prisoner of war, he must receive some due process.
The plurality left its scope and nature somewhat vague and subject to a balancing test but said it must include at least notice and an opportunity to rebut the charges before a neutral judicial officer. Justices Scalia and Stevens would have prohibited the practice altogether unless Congress had first suspended the writ of habeas corpus.
The plurality holding, while dubious in my view for the reasons suggested by Justice Souter’s concurrence, makes some sense in light of the Fifth Amendment’s guarantee that no one shall be deprived of liberty without due process of law.
It’s also inconsistent with Attorney General Eric Holder’s claim that due process need not require judicial process in circumstances comparable to those in Hamdi. Indeed, in Hamdi, the Court dealt with a recognizable armed conflict rather than the amorphous global conflict with al-Qaeda and its allies or affiliates – or simply unspecified and non-imminent threats to the United States — the context to which this policy apparently extends.
At any rate, if judicial process along the lines suggested in Hamdi is required by the Fifth Amendment before deprivation of liberty, it’s hard to understand how a U.S. citizen may nonetheless, according to the administration, be deprived of life without at least comparable process to that required by the Hamdi plurality.
To my mind, it’s unacceptable that the administration continues to refuse to release its ostensible legal justification for the arrogation of authority to engage in executive targeted killing of U.S. citizens outside of recognized war zones, including, so far as we know, the United States itself.
Certainly, there’s no valid reason for withholding the legal justification from Congress, which has, among other germane constitutional powers, the authority to ‘make rules for the government and regulation of’ the armed forces of the United States.
Contact Sloane at 617-358-4633; firstname.lastname@example.org