The Big Picture and the Closeup

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.

It is easy to imagine now, if TSA had leveled with us about what it proposed to do, what members of the public would have said what they felt about government official using radiation to take revealing pictures of them, and, as an alternative, literally groping their “privates.” TSA would be expected to respond with arguments about the recent attempted “underwear bomber,” and how these searches would make us all safer. And then a policy calculation in which the public was involved and invested could have been made, by an agency better advised about how the public felt.

On Advice of Counsel               In discussing whether we should prosecute the people who ordered or committed torture, I’ve been drawing some artificial distinctions for clarity.  I’ve contrasted the working torturers, the folks who slammed other folks into walls and poured water over their airways, with the Pentagon and Langley brass who merely ordained […]

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.