Wednesday, February 6, 2013

Drones, Due Process. Morning Joe needs drones research

Drones, Due Process in a Time of No Battlefields.
Loss of Life, American Citizens, Exigent Circumstances and How to Prove?
Revoke citizenship before droning?


Morning Joe needs due process research before tackling as complex an issue as due process and drone targeting abroad (especially an American). Joe himself is not the one to do it, as he avoids the scope of needed discussions -- more interested in turning even drone policy into a partisan matter. To reduce this new policy matter in a new era, to an opp for repubs, is a disservice to those of us up at 6:30.  I tuned you all out. In the drone strike matter lurk difficult balancing issues of, powers of administrators and branches of government to interpret the Constitution, public policy competing concerns, and lines of legal precedent and other considerations weighing in many directions.

Discuss instead of one moral view, which may or may not sway these circumstanaces:  first, who can interpret the constitution?  We all can; but the judiciary has final say.  If our domestic law violates international law, on what ground do we continue to act abroad according to our law? second, what is our law. Unclear, unclear, unclear. So, Joe, act first for clarification of law, varieties of due process, then come to conclusions down the road. Fill in needed gaps; not retribution, partisan pointing.

Step A.

Please add to Morning Joe's prompter: article by Michael C. Dorf, law professor at Cornell, author. See

Scroll down to the end for the most relevant portion as to drone strikes. 

1.  Due process. Must it be judicial? When is there a constitutional right to a judicial forum.  Look for it in the concept of due process. But due process does not always have to be judicial. Is that so?  Can a fair administrative process meet the requirements of due process.   Can constitutional matters ever be resolved in other than a judicial process.

If a President engages only executive-branch procedures, is that enough. In this sense, notes Michael Dorf, it is like an administrative law issue. The mundane case used as reference there is "Elgin"

2.  In 1976, the case of Mathews v. Eldridge upped the ante on what procedural safeguards are necessary.  In that case, says Michael Dorf, the due process required should be tied to the potential harm stemming from a wrong decision by the government.  For example, it would appear that loss of life, the ultimate harm, mandates the best process available. If so, that would be judicial process.

If we use executive process instead as due process where there is to be or likely loss of life, then by what rationale?  Perhaps executive process is acceptable where the program a) is of high value to the government; and b) government action in a military context is different from peacetime-nonwar.  Judicial process there is too unweildy.  Can that be fixed? Embed-A-Judge? Importance to government:  Security of the nation would fit, if it is proven.  Note that the president is not only to uphold the law, but protect the country.  Need to find that cite.

3.  Battlefield exception to judicial due process.  Explore that where there is no battlefield. Lines are hazy or totally absorbed into each other.  How can traditional bounds of constitutionality apply to the drone program operating in a world of fluid battle grounds.  And where a tool of self-defense by the "bad guys" is to blend in with family and village.

4. Primacy of judicial due process.  That appears to be a core American value. So how to adapt?

Step B.

Mika, please ask the fellows lined up below the salt at the square table (why not a round table?) Ask, what would you do, partisans on both sides.

For the Brennan confirmation hearing, for example.  Give the panel this  homework, preparation to focus them on how difficult this problem is.  It is not enough to throw stones.  What would each build instead? Require preliminary draft proposals, tentative, in longhand if you like, to focus considerations on how a new law might look.  Then see if the facts fit your initial idea.

What wording provides for adequate due process for targeted drone strikes, if that person feels that present law or absence thereof is inadequate.

This will at least ensure some thinking before the event  focus the discussion, avoiding the circus panel that too often results in Congress.  There may also be a required upload, again from Cornell, but this time Andrew C. Orr's paper 2011 at Drone Strikes, Unmanned, Unprecedented, Unresolved: The Status of American Drone Strikes In Pakistan Under International Law

Is it lawful or better to hire private contractors to act on the sly? Anything deniable? No aaccountability? The last administration thought so, is that so?

Such draft should weigh at least,

 a)  the value in saving lives of targeted strikes as opposed to deploying live military (drone in lieu of army), and

b) whether an American should retain a higher right to due process than non-Americans, despite serving the enemy, just because of citizenship, and if that means putting more lives at risk in a live capture and return;  and

c) if drone strikes are found to violate international law (do a search), then does a law here that authorizes them also in itself violate international law.  See international law argument in footnote, Paul Guggenheim view in ICJ case 2001 and

 d) whether citizenship can and should be removed by due process first.  This gives notice to the American that he may lose citizenship by revocation for treason or other grounds that may apply or be created, see discussion of grounds in loosey-goosey chat place, but it offers cites,

This gives notice that if the person does not appear to defend the citizenship status, citizenship can be revoked and with it, any additional citizenship protections. 

 Bottom line:

It is hard to imagine that the Supreme Court will put administrative due process above judicial, absent demonstrable exigent circumstances, imminent irreparable harm, etc.).  Should there be a review judicially thereafter?

The government left the torture field, apparently, because it did not work, notwithstanding Hollywood's dark 30 erroneous but persuasive spin.  If the government leaves the drone field, to get at enemy leaders, what recourse is there other than armies?  Special ops again all the time? At what cost?

Get back to Hillary's parting shot -- Put Diplomacy and Development on a par with Defense.

Enlightenment: If we don't like what it takes to keep us safe militarily, then fund diplomacy and development and maybe make some friends.  Mika, you do what you can to be heard in the great gathering of hierarchists at that horrid angled table.  Continue to speak up.

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