OLC Memo – The Due Process Piece

Much to say on the redacted version of the U.S. Justice Department Office of Legal Counsel memorandum on targeted killing, released by a U.S. court yesterday. For now, let me start with U.S. constitutional law – namely, what does the Fifth Amendment require by way of procedural protection before a U.S. citizen like Awlaki may be lethally targeted?

Recall the earlier released DOJ White Paper on the topic had been clear its analysis was limited to the particular circumstances the intelligence community represented Awlaki presented: the use of “lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force if al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” The memo’s effort to assess the due process requirements in this circumstance runs from page 38 to page 41. It begins by appropriately acknowledging that, because of Awlaki’s citizenship, the Fifth Amendment “likely” protects him even while he is abroad in such circumstances. The memo also correctly identifies Mathews v. Eldridge (a 1976 Supreme Court case assessing what process was due before the government could deprive an individual of property) as setting the test for assessing how much process is required in the targeting case as well; Mathews is the test the Hamdi Court applied in 2004 in determining that U.S. citizen Yaser Hamdi, picked up on the Afghan battlefield, was entitled to notice of the reason for his detention and an opportunity to be heard by a neutral arbiter, once the exigency surrounding his battlefield seizure had past.

Here, the memo’s analysis becomes more problematic.

First, it only partially quotes the Mathews standard, as stated by the Hamdi Court – omitting a critical factor of the three identified in the test. The OLC memo quotes the Court has saying that “the process due in any given instance is determined by weighing ‘the private interest that will be affected by the official action’ against the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing greater process.” The Hamdi Court (quoting Mathews) said this much, and then added another sentence: “The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of ‘the risk of an erroneous deprivation’ of the private interest if the process were reduced and the ‘probable value, if any, of additional or substitute safeguards.’” Critically, the Mathews test assesses not only the absolute value of the interests at stake on either side – including the burdens on the government from providing more process – but also whether deprivation decisions could be made relatively more accurate if existing procedures were changed or enhanced. There is no indication that the memo conducted this part of the analysis, not only because this part of the Mathews test is missing from the memo’s summary, but also because there is no indication the memo undertakes the first necessary part of what this test would require – a description of what are the existing procedures. The most process-related detail we get in this document is that: “the highest officers in the Intelligence Community have reviewed the factual basis for the lethal operation, … and the CIA and DOD continue to monitor whether changed circumstances would permit [a capture rather than kill operation].” This of course makes no mention of the standard due process elements – what the Hamdi Court called the “essential constitutional promises” – of notice and an opportunity to be heard.

One might imagine a description of existing procedures was among the many redactions made in the newly released text; indeed, most of the next page of the memo’s due process analysis is missing. But the textual clues available suggest the redactions are discussing case law and factual circumstances of the evidence against Awlaki in the redacted portion – not anything to do with what procedures DOD and/or CIA currently provide. Without this baseline, it’s almost impossible to imagine that the memo is able seriously to engage the question whether any additional procedures would either much burden the government, much less reduce the risk of error inherent in any targeting operation. (I use various open source DOD documents to summarize what current procedures are in this brief paper, then assess their validity under the Mathews test).

Beyond that, one is left to speculate based on the heavily redacted text what argument the memo does make to support the view that due process is satisfied in Awlaki’s case. In what would be the legal argument section, the non-redacted text leaves two circumstances visible the authors evidently thought relevant to the availability of due process: (1) the finding that Awlaki poses a “continued and imminent threat,” and (2) the conclusion that capture (as opposed to killing) may be impracticable or infeasible in particular “circumstances of war.”

Can such things matter in assessing how much process is due? Yes. Hamdi suggests as much (emphasizing that the detainee was only entitled to notice and a hearing after the government made the decision to continue to hold him, not immediately following the battlefield capture itself). There are also a handful of cases in which courts have Courts have approved terrorist asset freezing laws that provide only post-deprivation notice to those whose assets are subject to forfeiture. As several courts have reasoned, foreign terrorist organizations are not entitled to pre-deprivation process that would effectively afford them a chance to “spirit [otherwise seizable] assets out of the United States.” In other words, courts have been prepared to recognize modifications in the amount or nature of process required in certain, limited exigent circumstances. I take the references to the circumstances above to be in the service of identifying an exigency related exception to standard due process.

There are two reasons I think the exigency argument – such as it is – is unlikely to be fully persuasive here. First, as DOD targeting manuals themselves recognize, there are two broad kinds of targeting operations: deliberate targeting operations – involving planned targets and a non-exigent time frame (a day or more) – and dynamic operations – typically involving operations to be carried out within 24 hours, including against unanticipated targets of opportunity. (Again, lots more detail and citations here.) While the U.S. may not have known where or under what circumstances it would ultimately find Awlaki, there can be no question that the decision to place him on a targeting list (based on published reports, a year or more before he was killed by a U.S. drone in Yemen) was done in a highly deliberate manner. In other words, the decision that Awlaki was lethally targetable – like many, many U.S. targeting decisions in wartime – was made in something other than exigent circumstances. Even if the administration had hoped capture might be possible, and even if it wasn’t apparent until the last minute that capture was not, the decision that killing would be legal under certain anticipatable circumstances was made with more than ample time to consider whether modest amounts more process at that stage would reduce the risk of killing the wrong guy.

Second, while the terrorist asset seizure cases recognize the government’s legitimate concern that pre-deprivation notice might give terrorists a chance to hide assets from seizure, deprivation of assets and deprivation of life are categorically different kinds of losses. Indeed, as the Seventh Circuit emphasized in the asset seizure context, if the seizure later proved unjustified under the law, wrongfully designated organizations were entitled to pursue a statutory remedy for just compensation. Put differently, post-deprivation process could afford targets a “meaningful” opportunity to contest the legality of the action, and remedy any wrongful loss. Not only is there no such post-deprivation monetary remedy available for targeting mistakes available here, post-deprivation remedies in general are far less “meaningful” than in the asset context when the life is already lost.

I have argued elsewhere that it is possible to provide forms of constructive notice (at a minimum by making public in advance the specific names of all groups included under the AUMF’s “associated forces”) and pre-deprivation hearing (involving the institutionalized use of an opposition advocate) in a way that both serves legitimate government interests and reduces the risk of error. But whether one embraces those particular fixes or not, it remains difficult to see (and increasingly unlikely based on the limited amount of blank space the redactions left) there was detailed contemplation of how much process could realistically be due in the memo here.