When President Obama approves a drone strike against someone he identifies as a terrorist, John Brennan explained at his confirmation hearing last week, the missile fired from that unmanned aircraft is delivering prevention, not punishment.
"We only take such actions as a last resort to save lives when there's no other alternative," said Brennan, the counterterrorism adviser Obama has picked to run the CIA.
A Justice Department white paper leaked a few days before Brennan's hearing likewise describes death by drone as an "act of national self-defense," part of an "armed conflict" with al-Qaida and its allies. Yet the white paper also speaks of due process for American citizens condemned to death by the president, a requirement it says can be met through secret discussions within the executive branch. This contradiction at the heart of Obama's "targeted killing" policy, combining the rules of the battlefield with the rules of the courtroom, makes a muddle of both.
Last month, in a decision that upheld the president's right to keep the memos summarized in the DOJ white paper under wraps, U.S. District Judge Colleen McMahon noted that "the concept of due process of law," guaranteed by the Fifth Amendment, "has never been understood to apply to combatants on the battlefield actively engaged in armed combat against the United States." That is how the Obama administration describes members of al-Qaida and allied groups: Regardless of nationality, they are enemy combatants who legally can be killed at will, wherever they happen to be.
Yet in a speech last March, Attorney General Eric Holder argued not that the Due Process Clause is irrelevant in this context but that President Obama's kill orders comply with it.
"The Constitution's guarantee of due process is ironclad, and it is essential," Holder said, but "due process and judicial process are not one and the same." Similarly, in an interview with CNN last September, Obama claimed the procedures for identifying people subject to summary execution by drone, though confined to the executive branch, are "extensive" enough to comply with "our traditions of rule of law and due process."