Who Gets Due Process in a War?

by Matthew J. Franck

NRO readers may already have read Andy McCarthy’s piece on this site regarding the DOJ “white paper” on “lethal operations” conducted against U.S. citizens.  I have my own take on it at First Things today.  From “That ‘Lethal Operation’ White Paper: Under-Inclusive, Over-Solicitous, and Misguided“:

The recent leak to NBC News of a Justice Department “white paper,” on the authority to conduct “lethal operations” against U.S. citizens abroad if they are enemy combatants in our war against al-Qa’ida, has touched off another round of controversy about the lawfulness of our tactics. Although the memo does not mention the use of drones as a particular means of killing, it is widely understood that drones are the Obama administration’s preferred method of “lethal operation,” and the killing in 2011 of Anwar al-Awlaki by a drone strike set off a great deal of commentary on whether the president of the United States can “target” American citizens for death by simply declaring them enemies of the state.

This white paper is the administration’s attempt to deal with the questions raised by our current wartime practices. It is presumably based on substantially similar legal memoranda prepared by the Office of Legal Counsel in the Justice Department; one should not expect such memoranda, if they surface, to add much.

One might have hoped, however, for a legal analysis more competent than the one represented in this white paper. Its anonymous authors make two large errors.

Read the rest here.

Bench Memos

NRO’s home for judicial news and analysis.