Klingler on Holder's Speech: Does Due Process Require LOAC Compliance?
Former NSC Legal Adviser Richard Klingler, now a partner at Sidley Austin, writes in with the following important observation in relation to Holder’s speech and my commentary thereon. He raises a really interesting question regarding whether Holder meant to indicate that LOAC compliance is required by the Due Process Clause in this scenario, or if instead it was mentioned as an independent constraint.
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Former NSC Legal Adviser Richard Klingler, now a partner at Sidley Austin, writes in with the following important observation in relation to Holder’s speech and my commentary thereon. He raises a really interesting question regarding whether Holder meant to indicate that LOAC compliance is required by the Due Process Clause in this scenario, or if instead it was mentioned as an independent constraint. Writes Richard:
One of the most interesting aspects of the speech is the relation – and distinction -- between U.S. and international legal authorities. The framing of the speech indicates that the Administration will not use force authorized by the Constitution but contrary to international law of war principles – even, given the subject of the speech, for covert action. As to due process, though, I do have to disagree with your characterization of the Attorney General’s multi-part test as capturing what the Due Process Clause requires, and specifically with your including compliance with the law of war as part of a due process test. I don’t read the speech as saying that: instead, the multi-part test is presented as what the Administration believes is necessary to make the use of force “lawful”, not to make the use of force consistent with due process. The Administration clearly includes compliance with “law of war principles” as part of what is necessary to constitute lawful action, and earlier in the speech the Attorney General distinguished between constitutional authority and international legal authority. And, later, the Attorney General treats compliance with the law of war as required for any U.S. use of lethal force. (The distinction also seems right on the merits: for example, it’s hard to see how the Due Process Clause requires compliance with the principle of proportionality where only non-citizens are subject to collateral harm, even where a U.S. citizen is targeted.)
Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.
