Thoughts on the use of precedent in the leaked targeted killing memo.

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    jonstreeter
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    I have been trying to dig deep into the leaked memo justifying the targeting and killing of US citizens that hit the media this past week. I have transcribed and imported the document into wikipedia and am trying to link to all the source references in the original. you can view it here:

    http://en.wikipedia.org/wiki/020413_DOJ_White_Paper

    Something that really is made clear when you read some of the prior opinions upon which the case for killings is made – the use of precedent rather than a direct appeal to the Constitution is a dangerous practice and constitutes a sort of subtle and hidden slippery slope. If even small governments have a tendency to consolidate and abuse power over time – this is one of the most effective means of doing so – the slow and deliberate steps towards despotism appear to be draped in all of the trappings of legality, rule of law and impartiality that the people would cherish.

    The difficulty inherent to the use of precedent in making arguments for expanding the powers of government is that while the language of the constitution is concise, direct, unyielding and absolute (i.e. Congress shall make no law respecting an establishment of religion) (i.e. No person shall be … deprived of life, liberty, or property, without due process of law) etc. the language of court opinions, however, is prone to being lengthy, imprecise, and subject to vague or expansive interpretation. An amendment of the bill of rights might constitute a paragraph while an opinion on a question of that amendment may occupy 20+ pages. Any one who has gone through a legal deposition will attest to the fact that the more words spoken (or written) the greater the opportunity for divergent interpretation and application of those words.

    All of these factors, while inherent to the direct constitutional assessment of an individual case at hand, tend to blur the edges of definition and reach out for great misapplication when taken at numerous interpretative iterations from the original words of the constitution. This ultimately may leave us with the problem we presently face where a series of precedents, each given a more expansive interpretation, leads us to find the government using legal justification to defend the very acts that the original constitution would have otherwise prohibited.

    Another great challenge with the practice of citing precedent is that while they may have the feel and illusion of law when cited in a court opinion, the very nature of subjective interpretation and the differing makeup and tendencies of the supreme court over time make conflicting and opposing interpretations of the original constitution unavoidable. Future courts may then pick and choose among conflicting precedents to fit their own disposition wholly apart from a direct appeal to the constitution itself.

    For example, in the present case there are no less than 3 different opinions of the court. The plurality opinion cites a precedent supporting a strong definition of the requirements of due process:

    “An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case” -Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 542 (1985)

    “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an pportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’” Fuentes v. Shevin, 407 U. S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864)

    The dissenting opinion of Justice Thomas, however, cites different precedent to make the case that the strong requirements for due process cited in the plurality opinion are not necessary when the head of state claims to be acting in the interest of public safety:

    “When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. This was admitted with regard to killing men in the actual clash of arms, and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm.” – Moyer, 212 U. S., at 85 (citation omitted; emphasis added).

    These two separate and opposing interpretations are supposedly referring to the same constitution and yet are invoked to support clearly divergent conclusions. Since they are precedent, each may be considered to have legitimate validity, rendering the underlying clauses of the constitution itself a mere afterthought.

    When layer after layer of the relatively vague, permissive and subjective language of precedent is used to establish the validity of new law – the constitution is so buried under the arbitrary whims of various times and personality that it may not as well exist. The practice of relying primarily on precedent with only passing reference to the constitution itself is a practice which threatens to cut what sparse sinews still exist to constrain the government to the rule of law.

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