JURIST Guest Columnist Anthony D’Amato of the Northwestern University School of Law says that habeas corpus rights are too important for the executive branch to ignore, even in a time of war…

US President Barack Obama asserts that he has the constitutional privilege and power to order the killing of any US citizen and then cover it up. This is a sickening and dangerous attack on habeas corpus.

The writ of habeas corpus, established by the UK Parliament in 1679, is rightly considered the cornerstone of our liberty in the US. The late Senator Daniel Patrick Moynihan said that if he had to choose between living in a country with the right to vote but no habeas corpus, or a country that had habeas corpus but no right to vote, he’d choose the latter every time.

The “Great Writ” is a judicial order to bring before a court a person in unlawful detention. In some cases the whereabouts of the detainee is known only to the executive. Nevertheless, if a court issues the writ, the detainee must be brought before the court from wherever he may be hidden. The court then examines whether his detention is lawful.

It is clearly an a fortiori violation of habeas corpus if the government, instead of detaining a citizen, murders him. The idea is frighteningly reminiscent of the “disappeared persons” — the 10,000 to 30,000 citizens of Argentina (the number can only be estimated) who between 1976 and 1983 were murdered and their bodies hidden or destroyed by a government that was itself a terrorist organization.

The US Department of Justice (DOJ) does not discuss habeas corpus, probably because the constitutional language regarding the writ is constraining. The US Constitution provides that habeas corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Even though the executive maintains that the “war on terror” is a real war — continuous and global in scope — war is not one of the exceptions listed in the Suspension Clause.

The DOJ’s recent white paper goes through legal contortions to justify the lawfulness of government killing — perhaps with drones — of a US citizen believed to be a “senior operational leader [of] a terrorist organization engaged in constant plotting against the United States.” The targeted individual must be identified by “an informed, high-level official of the U.S. government.” Invoking Baker v. Carr, the white paper excludes the judiciary from the identification of putative terrorists. It claims that matters of foreign policy and national security frequently “involve the exercise of a discretion demonstrably committed to the executive or legislature.”

Except for the participation of US citizens in al Qaeda or other terrorist groups, there would be no need for legal justification. We are at war with terrorist organizations and have every right under international and constitutional law to use deadly force against their members. We can expect the executive branch to continue its war against terrorist groups despite the participation of US citizens in those groups.

Thus it may be a simple side-effect of our war against terrorists that seems to be leading to the erosion of habeas corpus. It’s like saying that this pill will relieve your headache but the side effect is death.

The “Great Writ” must be protected without compromising the war against terrorists.

Let’s start with the core scenario: a US national is participating in a terrorist organization that is plotting to use force against the US and its people. I argue that such a person, by voluntarily taking up arms against the US, has impliedly and conclusively renounced his American nationality.

The trio of Supreme Court cases on loss of nationality leave open the possibility of implied renunciation. Perez v. Brownell, where the petitioner lost his American nationality by voting in a foreign election, was reversed by Afroyim v. Rusk. Trop v. Dulles held that a statute stripping a wartime deserter of his US nationality was unconstitutional. The constitutional gravamen of all three cases was the extent of executive power in the field of foreign affairs and national security. Implied renunciation was not and could not have been a holding in any of the cases: voting in a foreign election would be appropriate for a dual national, and the act of military desertion is logically unrelated to the retention or renunciation of nationality.

To satisfy due process, the executive should present a motion in open court to any federal district court judge containing the name or names of all US nationals who the government believes are participants in terrorist organizations. The judge can order that the named persons, by taking up arms against the US, have renounced by implication their US nationality. However, if a named person personally appears before the judge within six months and convinces the judge that he was mistakenly identified, the judge will reverse his prior decision and reinstate the applicant’s US nationality.

With such a procedure in place, it would be a high crime and an impeachable offense for the president to order the killing of any US citizen.

Professor Anthony D’Amato is the Leighton Professor of Law at Northwestern University School of Law. He writes in the areas of international law and jurisprudence, focusing upon their underlying analytic structure.

Suggested citation: Anthony D’Amato, Drone Strikes Threaten Habeas Corpus: A Proposed Solution, JURIST – Forum, Mar. 13, 2012, http://jurist.org/forum/2013/03/anthony-damato-habeas-corpus.php