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Obama: U.S. seeks 'due process' in drone strikes

The U.S. Government seeks to accord "due process" to terror suspects targeted for drone strikes, President Barack Obama said in a recent interview.

"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," Obama said in an interview with CNN first aired on Monday. "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."

Obama's comments echo Attorney General Eric Holder's remarks in a speech in Chicago in March explaining the legal basis the administration asserts for the drone strikes, part of broader programs sometimes referred to as "targeted killing." However, Holder acknowledged in that speech that the "due process" the administration has employed does not involve an independent review by the courts.

"Due process and judicial process are not one and the same, particularly when it comes to national security," Holder said then. "The Constitution guarantees due process, it does not guarantee judicial process."

Critics say the kind of due process Holder and Obama are describing is pretty weak stuff: layers of internal administration review, rather than a more formal process involving a court. One oddity of the current legal situation remains that the U.S. government needs some kind of court-approved warrant to intentionally eavesdrop on the telephone or e-mail of a U.S. citizen suspected of involvement with Al Qaeda, like Anwar Al-Awlaki. However, using a drone, a missile, bomb or military raid to intentionally kill that same person requires no approval from the judicial branch.

Another thing absent here despite the administration's welcome steps towards explaining the scope and legal rationale of the drone programs: transparency. While the various systems for authorizing such strikes have been reported on in books like Dan Klaidman's "Kill or Capture" and news stories like this one in May in the New York Times, virtually nothing about the mechanics of the process is officially on the record. In addition, it's unclear how if at all the secret authorizing system deals with the issue of whether terrorist suspects, particularly Americans, need to be on notice that the government is seeking them before they're killed in a process that offers no opportunity for surrender on the spot.

The administration has also said that it only uses deadly force where capture is "not feasible," something president described as limiting the program to "very remote areas [where] it's difficult to capture them." However, the question of feasibility, sometime referred to as "undue risk" to the U.S. soldiers or operatives who might carry out an operation, seems highly subjective.

For instance, the operation that targeted Osama bin Laden probably involved "undue risk" to the troops involved, especially when compared with dropping a huge bomb on the house he was living in. The administration seems to be saying it needn't risk an on-the-ground operation when a drone strike will do the trick. (Of course, bombing bin Laden's house would have likely caused civilian casualties, including those of children. )

Given all those thorny issues, one can understand why Obama, a former professor of constitutional law at the University of Chicago, told CNN's Jessica Yellin that he "absolutely" struggles with the process.

(By the way, kudos to Yellin for putting the question to Obama in an interview for an election-related CNN documentary. In tweets earlier this week, I credited a Cincinnati TV reporter for beating the White House press corps to the punch with the drone-related questions. Turns out Yellin was first and got more out of Obama with sharper questions, though I'm still surprised that it took three years and eight months into Obama's presidency for him to be asked about the subject by a journalist.)

More on the CNN interview here on the 44 blog.