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 ‘Obama Administration’
The CIA operates in stealth; it is associated with some of the worst abuses of power in recent American history, including assassinations, coups, and torture; it has military capabilities. Congress needs to be firmly in control of its relationship with such an agency. The Constitution demands no less.
There can be no such thing as “constructive treason.” It must be the real thing. And the facts of the Edward Snowden case highlight why the Framers’ narrowing of the definition is important.
Is the ingenuity of our judges and lawyers so trifling we cannot establish that linkage without revealing things that are truly secret? (Establish waterboarding, for instance, without going into what questions the torturers were asking? Or conduct certain proceedings in camera?) Is it beyond all possibility to chart a judicial path to consequences for the people who did these things?
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.