Due process is a process you do: The Legality of U.S. Drone Strikes

Last week, President Barack Obama said in an interview with CNN that “It’s very important for the president and the entire culture of our national security team to continually ask tough questions about, are we doing the right thing, are we abiding by rule of law, are we abiding by due process,” adding “And then set up structures and institutional checks, so that, you know, you avoid any kind of slippery slope into a place where we’re not being true to who we are.”

The comments follow those of Attorney General Eric Holder, who stated unequivocaly in March of 2012 that “Due process and judicial process are not one and the same, particularly when it comes to national security”. For the U.S.’ top legal expert, “The Constitution guarantees due process, it does not guarantee judicial process.”

Critics of this ‘trust us’ approach point to its self-referential nature: it’s legal because we say it is.

Obama than added 5 criteria for ensuring the legality of the strikes:

• First, “It has to be a target that is authorized by our laws.”

• Second, “It has to be a threat that is serious and not speculative.”

• Third, “It has to be a situation in which we can’t capture the individual before they move forward on some sort of operational plot against the United States.”

• Fourth, “We’ve got to make sure that in whatever operations we conduct, we are very careful about avoiding civilian casualties.”

• And fifth, “That while there is a legal justification for us to try and stop [American citizens] from carrying out plots … they are subject to the protections of the Constitution and due process.”

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