Due process is flexible, in light of the circumstances. But what kind of meaningful trial could U.S. citizen and terror suspect Anwar Awlaki have received if the government were allowed to kill him first, and try him afterwards? Once you concede Awlaki had a due process interest in his life – and one always has a due process interest in one’s life – then a post-deprivation trial must by definition have failed the due process test. That test never yields a result where the amount of due process owed to the private citizen is zero, both before and after deprivation of the due process interest. That’s why death penalty appeals are so long and tortuous: if you don’t get it right before you execute the defendant, there is no opportunity to correct it.
Posts Tagged ‘Al Quaeda’
So: We now know that fundamentally the OLC is coloring outside the lines, making up presidential authority where none yet exists. If we were to proceed lawfully, we would need a constitutionally-sound, explicit and bona fide Congressional authorization.
For the moment, we already have something semi-substantive. We should have had it long ago. This is not Kafka’s Mitteleuropa. It’s our government and our information. We should not have had to wait for leakers to get our hands on it.
Do we want our presidents empowered to imprison people simply for their beliefs?
So it is far from clear that, even if the 9/11 attacks had been carried out by uniformed military, these would have been war crimes. It is, however, beyond doubt a violation of U.S. and New York State criminal law for civilians to attack skyscrapers with airplanes.
To read the groupthinkers’ policy statements from the decade preceding 9/11, it appears that they believed it was time for the U.S. to establish that it had the military power to do anything it pleased in the Middle East. Somehow this would guarantee our access to oil, assure Israel’s survival, and perpetuate our ascendancy over what the hawks’ fellow-traveler journalist Christopher Hitchens has called “Islamo-fascism.” And apparently Iraq was to be the showcase for this program. But within the echo-chamber that was the hawks’ ruminations, the fundamental truth is that there is no fundamental truth.
And here is the moral, strategic, and tactical problem: How we can expect the world to accord full faith and credit to that court’s eventual verdict when we establish and countenance tribunals that are themselves human rights violations? A question urgently worth pondering.
When the International Committee of the Red Cross reported in February 2004 on our various Iraqi detention centers, they noted that at all of them, there seemed to be a single playbook – the real playbook – of practices focusing on the sexual and religious humiliation of those detainees deemed “high value,” i.e. most likely to yield Actionable Intel.