When you are saying something true, pure, clean and right, you often do not need many words. Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity. Americans may not “…be deprived of life, liberty, or property, without due process of law.”

There are no footnotes in the Fifth Amendment, no secret memos, no exceptions. Those things were unnecessary, because in what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government was made up of us, the purpose of government was to serve us, and the government was beholden to us. Such a government should be incapable of killing its own citizens without an open, public trial allowing the accused to defend him/herself.

Oh how times have changed.

Killing an American

On September 30, 2011 a U.S. drone fired a missile in Yemen and killed American Citizen Anwar al Awlaki, born in the United States. A few days later the U.S. also killed al Awlaki’s 16 year old American Citizen son. Al Awlaki had once been a friend of the American military, invited in the aftermath of 9/11 to speak and lunch at the Pentagon. A few years later, al Awlaki was connected by the same U.S. government to al Qaeda, apparently mostly as a propagandist who may or may not have taken on an online role in persuading other Westerners to join the cause.

In 2012 Attorney General Holder said of the al Awlaki killing and the Fifth Amendment “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” It was unknown at the time, but Holder was referring to a secret white paper prepared by the Office of the Legal Counsel laying out the legal justification for the U.S. government to kill one of its own citizens extrajudicially, in apparent violation of the Fifth Amendment.

Orwellian Legality

A hallmark of Post-Constitutional America, of which the U.S. government killing its own citizens without due process by drone surely is a part, is the manipulation of existing rights and laws without just doing away with them. Unlike national security states and tyrannies of the past, which overtly declared constitutions and laws obsolete and crumpled up the parchment, America’s new state twists the old into something new, and sinister.

After a long legal battle to keep secret the underlying “legal” basis for its killing of al Awlaki (and others in the past, or to come?), the Obama administration released in June 2014 a redacted text of the Office of Legal Counsel’s white paper drawn up to justify the action. With some irony, the release of the 2010 document was facilitated by the Obama administration’s desire to placate senators reluctant to approve the memo’s author, David Barron, to serve on the First Circuit Court of Appeals (Barron was indeed approved.)

Reading the Kill Justification Paper: Death, With a Stroke of a Pen

Here’s what the kill white paper says in order to make legal the killing of an American Citizen by his/her government without trial (the full memo is here.)

The essential element for the kill to be legal, the document says, is “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” (Also, capture must be found to be unfeasible, and the kill must follow the existing laws of war.)

The rest of the justification simply flows from there in a perverse chain of logic: the president has the obligation to protect America, al Qaeda or its like are a threat, Congress has authorized war against al Qaeda, and being in al Qaeda is more relevant than whatever citizenship the target may hold or where s/he is located (“citizenship does not immunize the target.”) Basically, it is all simply an extension of the idea of self-defense. International borders and other nations’ sovereignty are not an issue if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.”

The Balancing Test

The Fifth Amendment right to due process, and perhaps to a lesser extent, the Fourth Amendment right against unwarranted seizure (i.e., a life) are dismissed casually in the white paper by a claim that the U.S.’ interest in “forestalling the threat of violence and death to other Americans that arises” trumps any constitutional rights for the individual. This is described as part of the traditional Fifth Amendment “balancing process.”

The balancing process cited as conclusive enough to justify the extrajudicial killing of an American comes, according to the kill white paper, stems from a 1976 Supreme Court case, Mathews v. Eldridge, 424 U.S. 319 (1976), where the Court held that individuals have a statutorily granted property right in Social Security benefits, that the termination of those benefits implicates due process, but that the termination of those benefits does not require a pre-termination hearing. Stick with me on this.

The balance test for the Fifth Amendment to apply as laid out in that case has three components [notes added]:

(1) The importance of the private interest affected. [In a kill case, the private interest is the life of an American citizen]

(2) The risk of erroneous deprivation through the procedures used, and the probable value of any additional or substitute procedural safeguards. [In a kill case, since the American will be dead, the impossibility of ever "correcting" the mistake. The Court held that "If the risk of error is minimal, then the need for additional procedures declines. If the risk is high then additional procedures would be merited." So, with the potential of a recoverable error, less process is needed. The more serious a mistake might be if committed, the more process needed.]

(3) The importance of the state interest involved and the burdens which any additional or substitute procedural safeguards would impose on the state. [According to the kill white paper, the idea that killing the American saves potentially thousands of other Americans lies is the state's interest. The burden of the U.S. government to follow any procedural safeguards, such as a trial in absentia where the target could have his/her side presented by a lawyer, is not addressed in the kill white paper]

In short, the balancing test says that in some situations, where the government’s interest overshadows an individual’s interest, and the individual interest isn’t that big of a deal, and where a mistake by the government can be fixed, the full due process clause of the Fifth Amendment may not have to apply.

An Imbalance

The kill white paper draws heavily on the case Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan an American citizen and sought to detain him indefinitely without trial as an enemy combatant.

After a long legal battle that went to the Supreme Court, the three-part balance test of Mathews v. Eldridge was decided to apply to the case and allow the U.S. to limit– but not fully do away with as in the drone killings– the due process to be received. The most important point here is that despite limiting his rights, the Court was clear that the prisoner Hamdi should have a meaningful opportunity to challenge his enemy combatant status.

Interestingly, likely to avoid a court challenge to the conditions of this detention and the exposure of whatever details of his capture and possible torture might come out, the U.S. government released Hamdi without charge and forcibly sent him, an American citizen, to Saudi Arabia, and required him then to “voluntarily” renounce his U.S. citizenship. Of course the deportation and renunciation are themselves of dubious constitutionality; U.S. citizens have a right under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad.

That the kill white paper makes much of the Hamdi case suggests the lack of sound legal argument. Claiming killing an American by his/her own government without trial is allowed by the balance test, the white paper ignores the fact that Hamdi was not killed. A mistake in his case can be largely corrected, possibly in the future as a result of a court appeal, simply by reinstating his U.S. citizenship and allowing him to return to the U.S.

A broader critical issue not addressed in the kill white paper is that Hamdi’s case deals with (albeit serious) administrative questions, such as should he be allowed a trial and if so under what conditions. The government never proposed a death sentence for Hamdi. The underlying case the kill white paper bases its whole argument on, Mathews v. Eldridge, deals with relatively routine administrative government procedures, and certainly not ones of life and death of a citizen. The case was of course about denied Social Security benefits.

What Do Words Even Mean Anymore?

With significant constitutional issues dispensed with via some dubious logic and creaky legal citations, the kill white paper returns to its base premise, that a kill is legal when “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.”

The white paper does not identify what level of proof is needed to meet the test of “informed” and it does not explain who is and is not a “high level official of the U.S. government” for the purposes of killing an American.

The paper does spend a fair amount of time explaining how the standard dictionary definition of “imminent” does not apply here. The paper says for kill purposes the U.S. need not actually have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” Instead, imminent can mean a person such as al Awlaki is generally engaged in planning attacks that may or may not possibly be launched until years from now, or that may or may not happen at all. The paper says that since al Qaeda would prefer to continually attack the U.S., essentially any action, planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack and allows for a legal kill of an American citizen by the government.

And if somehow all that is not enough, the white paper also invokes the “public authority justification.” This concept says that public authorities can sometimes violate the law– a cop can justifiably shoot and kill an armed bad guy in some circumstances, and it’s a lawful kill. By extension, the government of the United States can drone down a citizen because s/he is allegedly a member of al Qaeda. The white paper does not address the fact that police shootings in the U.S. are subject to investigation and judicial review, and cops who commit an unlawful kill can face punishment.

None of this Can be Challenged in Court

The white paper also makes clear its conclusions cannot be challenged in any court. Courts have almost always refused to intervene in cases of “foreign policy,” holding constitutionally that is the realm of the Executive in consultation as required with Congress. Killing Americans, the white paper says, is a foreign policy act and thus none of any courts’ business. The issue of the white paper citing several court decisions to justify the killings while claiming the killings are not a court matter is not addressed.

Comment

It should be obvious that the kill white paper, ostensibly the result of some of the best legal thinking available to the White House, wouldn’t get a C- for a first year law student. The arguments are weak at best, the legal cites and logic rarely directly support the rationale, and the entire document seems a shaky attempt to justify however it can a pre-determined premise. The vagueness of word usage, the key terms left undefined, the odd definitions of common words like “imminent” employed, all strain against reality.

Yet despite all this (and keep in mind portions of the paper were redacted, there may be more legal falsities not yet seen), the sixteen pages described above were considered enough in Post-Constitutional America for president Obama to justify pushing aside the Fifth Amendment, ignoring due process, and ordering the death of an American citizen.

Oh how times have changed.

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Peter Van Buren writes about current events at blog. His book,Ghosts of Tom Joad: A Story of the #99Percent, is available now from from Amazon.

Image by qthomasbower under Creative Commons license