Executing the Laws

By DOUGLAS EDLIN

Lethal Force and Legal Process

According to Article II, Section 3 of the US Constitution, the President of the United States must “take care that the laws be faithfully executed.” In a speech delivered earlier this month, Eric Holder, the Attorney General of the United States, offered a legal defense of actions taken by the United States government to kill American citizens living abroad who pose an imminent threat to US national security. In the speech, Attorney General Holder explained the Obama Administration’s approach to the identification, detention, and prosecution of suspected terrorists. Holder also explained that, in certain circumstances, the United States must use lethal force rather than the legal process to combat the threat of terrorism. Here is a brief excerpt:

[J]ust as surely as we are a nation at war, we also are a nation of laws and values. Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals . . . Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

After reading this, my immediate thought was: is that correct as a statement of US law? And a thought that occurred to me shortly thereafter (…) was: would this be an accurate statement of UK law?

What Process is Due?

The fundamental requirements of due process are adequate notice and a fair hearing ...

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