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Comment by rayiner | Hacker News Reader

It's not so clear cut as you make it out to be. In the phrase "due process," the word "due" literally means "what is warranted." I.e. "Due process" has always been understood as the idea that people are entitled to the amount of process warranted under the circumstances. It's about fact-specific inquiries, not bright-line rules.

How much process is "warranted" when a U.S. Citizen wages war against the U.S. abroad and actively tries to evade any attempts at accountability through other means? Is military action against a U.S. citizen abroad never warranted? Maybe, but maybe not. I wouldn't have made the same call as Holder, but that's just me opinion, not an inexorable legal conclusion.

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> It's not so clear cut as you make it out to be.

I don't think I understand exactly what part of my post you disagree with. Did I misstate the facts?

I understand that you think Holder may be justified in saying that the Constitution did not prevent the assassination. I am not a lawyer, and I cannot argue that I can tell you what was meant by those words originally, or how lawyers or judges would interpret those words today.

I can say that in my view, a plain, humane, and just reading of those words does not include a panel, meeting in secret, without any representative of the accused present to defend him, deciding upon his execution. Further, I will say that I think it speaks to Holder's view of the authority granted to large institutions that he was willing to stand by this as justice.

Not to make light of the situation, but I don't really think people on an active battlefield get a trial. It's just kind of the practicality of the matter. It's not like he was sitting at home in Denver.

If I was on a battlefield allied with forces against the side the United States government was directly supporting, I can't say I'd be surprised if the United States government killed me.

> Not to make light of the situation, but I don't really think people on an active battlefield get a trial.

OK, but Anwar al-Awlaki was not on an active battlefield when he was assassinated.

Neither was his son: https://en.wikipedia.org/wiki/Abdulrahman_al-Awlaki

Procedural Due Process [0]:

"Procedural due process is a legal doctrine in the United States that requires government officials to follow fair procedures before depriving a person of life, liberty, or property. When the government seeks to deprive a person of one of those interests, procedural due process minimally requires for the government to afford the person notice, an opportunity to be heard, and a decision made by a neutral decisionmaker. Procedural due process is required by the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution."

They deprived him of his life and did not afford him notice, the opportunity to be heard, or a decision made by a neutral decisionmaker.

That's why people are skeptical when Holder said his death met the requirements for due process.

0: https://en.wikipedia.org/wiki/Procedural_due_process

> They deprived him of his life and did not afford him notice, the opportunity to be heard, or a decision made by a neutral decisionmaker.

How do we know that? Genuine question. May be they sent him a court notice to his last known address (in US or in foreign countries) asking him to appear in the court. What makes you believe that this did not happen? Are you implying that Anwar never knew that US law agencies were looking for him?

If you're sending a letter to an address in Denver, when you know he's in Yemen, you're not acting in good faith.

That said, I find it hard to believe that he was not aware that the United States government was looking for him.

The Federal death penalty is only used for crimes involving death, and they don't use the post office for capital trial information, scheduling, and/or notifications.

The death penalty is a punishment in response to ordinary criminal acts. Even countries that have abolished the death penalty reserve the right to kill people in war.

There is a fundamental difference between policing and military action. Applying civilian legal standards to military situations is a bad idea because it inevitably results in watering down ordinary criminal protections to accommodate the needs of military situations.

You don't have to condescend to me. On what principle(s) was al-Awlaki subject to anything other than ordinary criminal due process?

How was I being condescending? I was simply explaining the important difference between the criminal justice system, which exists to maintain internal order and the security of individuals, and the military, which exists to protect the nation from foreign threats.

Al Awalki was in a foreign country--where U.S. criminal laws presumptively do not apply--organizing armed action by foreigners against the United States. It's an archetypal act of war, rather than a crime.

Are you really saying that whenever a US citizen is out of the country, the US government is de jure entitled to kill them?

Your question is disingenuous because it ignores the factual context. Due process is inherently concerned with the particular factual circumstances. It has never meant that you get a full trial in every circumstance. So no, the U.S. government is not entitled to kill a U.S. citizen once he leaves U.S. soil as a categorical rule. But it can do so if it provides process commensurate with the circumstances. Which brings us back to the question: What process is "due" to someone who commits something that is not a crime, but rather is an archetypal act of war, from foreign soil?

What was the "archetypal" act of war, and in what way(s) was it more serious than actually taking up arms against the US?

But even so, why ask me? You're a lawyer, you know how to provide extraordinary evidence to support extraordinary claims relevant to what is by no means a settled question.

As you may be know, CIA/JSOC statements about the people they kill are often complete fabrications. For example, for years they classified any military-age male killed in a drone strike as a combatant. This included even if the the CIA/JSOC did not have any evidence of what violent acts the men had committed or planned, did not know their names, or did not even know how many "combatants" had been killed in a strike. The victims of these strikes are sometimes just drinking tea, attending weddings or funerals, or even attempting to provide medical aid to victims of a drone strike minutes or hours before.

The "notice, opportunity to be heard" stuff is from, IIRC, a welfare benefits case. It's a judicial gloss on what "due" means in a range of ordinary contexts, but those words appear nowhere in the text of the Constitution.

I honestly don't know the answer to that, but I'm disturbed by the precedent it sends when someone is individually targeted.

It's really something I'm not very comfortable with under any circumstances. I mean, what sort of proof is required? Who holds them accountable? If I'm not mistaken, this guy's son & daughter have also been killed by drone strikes (one under Obama, another under Trump), though I don't think either children were individually targeted.

Anyhow, I do not foresee myself becoming any more comfortable with that sort of thing under Trump.

> the word "due" literally means "what is warranted."

Due process means you to be tried in public before a jury of your peers, with a lawyer to represent you. And if convicted, you get to appeal.

> How much process is "warranted" when a U.S. Citizen wages war against the U.S. abroad

Waging war? Did he fire a shot at US forces? Did he plant a bomb?

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