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.

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.

For the moment, we already have something semi-substantive. We should have had it long ago. This is not Kafka’s Mitteleuropa. It’s our government and our information. We should not have had to wait for leakers to get our hands on it.

We can all agree that historical understandings of the dividing line between war and law enforcement do not fit well the kind of conflicts our nation faces today. But the solution to that quandary should not be to cede all discretion to an Executive that works in the shadows. There are other unaddressed needs at work, among them the imperative to cut the public in on the discussion and the decision-making.

Even if you think it’s a good thing to be trying to unseat Kadafi, you ought to be discouraged by the thinly-veiled mutiny Obama is waging against the law. Me, I had this naive notion that the president was supposed to take care that the laws be faithfully executed. Silly moi! Nothing faithful about this bit of execution.

So basically Obama is out of compliance. He has made a calculation to ignore what the written rules say, because history is on his side. Unfortunately, as far as the law goes, that bet is almost certainly right.

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 […]

A lawyer so brilliant he could not recognize when his own advice was bad: for his client, the President, and for the country. Disbar John Yoo.

In the global war on terror or, as the Bush Administration likes to call it, the GWOT, the U.S. aspires to the situation of a National League team in interleague play — relaxed rules. This time we consider three aspects of the relaxed GWOT away game we are playing these days: foreign assassinations, extraordinary rendition, and prisoner export.

When the International Committee of the Red Cross reported in February 2004 on our various Iraqi detention centers, they noted that at all of them, there seemed to be a single playbook – the real playbook – of practices focusing on the sexual and religious humiliation of those detainees deemed “high value,” i.e. most likely to yield Actionable Intel.