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 it is far from clear that, even if the 9/11 attacks had been carried out by uniformed military, these would have been war crimes. It is, however, beyond doubt a violation of U.S. and New York State criminal law for civilians to attack skyscrapers with airplanes.