Yesterday’s release of the Office of Legal Counsel’s “drone memo” (which, at some point, we should stop referring to in the singular) has provoked an understandable range of reactions and commentary, at least many of which have focused on the memo’s relatively modest due process analysis. With all due respect to most of these commentaries, though, I think they’ve largely missed the point.

The question is not whether the memo’s analysis of the underlying due process considerations is convincing in the abstract; the question is whether, based upon the actual facts at the point at which the operation was undertaken, the considerations were assessed correctly. Whether or not one thinks that the memo lays out those questions appropriately, there are two different reasons why it could never have resolved them in a manner that would be remotely satisfying: First, the assessment was ex ante, not ex postSecond, and related, the assessment was conducted by the Executive Branch, and not the courts. To be clear, I don’t hold either of these shortcomings against the analysis of the memo, which was tasked with answering a far more specific question. But, as I explain below the fold, they underscore why, despite its other important contributions, the memo doesn’t actually resolve anything significant with regard to the constitutionality of targeted killings–and never could have.

I.  Ex Ante vs. Ex Post Assessment

Readers may recall Attorney General Holder’s March 2012 speech at Northwestern University,  in which, among other things, he controversially suggested that “‘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.” As I wrote back then, this rhetoric is only accurate insofar as it is incomplete: The Supreme Court has repeatedly held only that the Due Process Clause does not, in all circumstances, require an individual with access to a judicial remedy before the government acts to deprive him of his life, liberty, or property. 

To that end, the memo’s analysis of due process relies entirely on Justice O’Connor’s application of the Mathews test in Hamdi v. Rumsfeld–that is, on an after-the-fact judicial assessment of whether the government’s internal military procedures sufficed to satisfy a U.S. citizen’s due process rights (albeit while ignoring a pretty important step of that analysis). Thus, rather than supporting Attorney General Holder’s assessment of the lack of need for judicial process, the memo sets out only to explain why the government’s pre-deprivation process was sufficient. Here’s the critical passage, from page 40:

we conclude that at least where, as here, the target’s activities pose a “continued and imminent threat of violence or death” to U.S. persons, “the highest officers in the Intelligence Community have reviewed the factual basis” for the lethal operation, and a capture operation would be infeasible–and where the CIA and DoD “continue to monitor whether changed circumstances would permit such an alternative”–the ‘realities of combat” and the weight of the government’s interest in using an authorized means of lethal force against this enemy are such that the Constitution would not require the government to provide further process to the U.S. person before using such force.

The critical question to me, though, is the one the memo was not tasked to, and never could, answer: What does the Constitution require after the government uses such force? Again, the reliance upon Hamdi and the Mathews test is telling, for there, Justice O’Connor was conducting an independent assessment of due process after the fact, as opposed to simply adhering to the Executive Branch’s internal, ex ante assessment. As Hamdi stresses, courts should give some deference to such assessments, but must offer their own independent ex post guidance–not just to evaluate the constitutionality of the specific act in question, but also to structure the preliminary analyses in future cases (as Hamdi did for this memo).

Ditto for the memo’s application of Tennessee v. Garner and the Fourth Amendment, a body of law that is, of necessity, based upon after-the-fact assessment of whether government uses of force were in fact necessary under the circumstances. As the memo explains, “The Fourth Amendment ‘reasonableness’ test is situation-dependent,” and so the assessment that the operation would not violate the Fourth Amendment was only “based on the facts that have been represented to us.” Whether the operation when it was actually undertaken some 14 months later in fact violated the Fourth Amendment, as the memo clearly understands, is an after-the-fact question.

II.  Judicial, not Just Executive, Process

Not only are these questions quintessentially ones to be resolved after the fact; they are also questions to be finally resolved by courts. Thus, in all of the cases in which the Supreme Court has held that the government need not provide a pre-deprivation remedy for the deprivation of an individual’s life, liberty, or property, that conclusion came alongside a holding that access to a meaningful post-deprivation judicial remedy was sufficient. The Supreme Court has never identified a situation in which whether the government provided due process can be confirmed without at least some judicial assessment, at some point, of the government’s conduct. Quite to the contrary, it has repeatedly suggested (albeit never squarely held) that the Constitution requires access to a judicial forum for resolution of such due process claims.

The same reasoning can be found in Fourth Amendment cases after and in light of Tennessee v. Garner: The question there is not whether the government conducted imposed reasonable rules in advance, or conducted a reasonable investigation afterwards; the question is whether the courts’ independent assessment of the facts bears out the conclusion that the government’s use of lethal force was reasonable under the circumstances–like the Supreme Court’s May 27 decision in Plumhoff v. Rickard. To be sure, the government’s own ex ante procedures (insofar as they even exist) may be relevant to after-the-fact judicial analysis, but they will never be dispositive, let alone preclusive.

III.  The Need for Meaningful Judicial Review

What all of this analysis underscores is that the focus on this one particular OLC memo has largely been misplaced–and that many of our concerns over the proliferation of targeted killing operations will never fully be assuaged by even unbounded public access to internal government legal opinions. What’s missing from this conversation isn’t more OLC memos; it’s meaningful judicial review–a problem compounded by the D.C. district court’s April 4 dismissal of the Bivens suit brought by the parents of Anwar al-Aulaqi. And although I don’t think the district court’s skepticism of Bivens claims in al-Aulaqi reflected a misapplication of circuit precedent (unlike its clearly incorrect analysis of the underlying Fourth Amendment claim), I do think, as I’ve explained at rather great length, that the circuit courts’ hostility toward Bivens is both irreconcilable with Bivens itself and neither compelled nor supported by the Supreme Court’s subsequent Bivens jurisprudence. In English, the constitutional entitlement to some kind of post-deprivation remedy in this context should override any reluctance by courts to provide avenues for relief when Congress has failed to do so. To that end, I’m surprised that neither the plaintiffs nor the district court appeared to fully grapple with the constitutional questions raised by the unavailability of such judicial review. Arguably, the district court’s refusal to provide a Bivens remedy might itself violate the plaintiffs’ procedural due process rights by constructively depriving them of access to a judicial forum.

In its editorial this morning, the New York Times repeats its earlier call for more judicial process, too. Its proposal, however, is modeled on a body like the Foreign Intelligence Surveillance Court (FISC).  As I’ve argued in the past, such a “drone court” won’t provide the kind of judicial review that is needed (and raises problems all its own), whereas after-the-fact damages suits in the ordinary federal courts would suffer from neither of those shortcomings.

The Times editorial further argues that “This memo should never have taken so long to be released, and more documents must be made public. The public is still in the dark on too many vital questions.”  But as the release of this memo underscores, the problem isn’t really the analysis provided by these internal government documents or the lack of transparency; look where we are now that we have the memo. Unlike the controversial OLC memos from the Bush Administration, the legal analysis offered by the Obama Administration’s lawyers does not blatantly misapply Supreme Court precedent in favor of radical theories of executive power.

Instead, the problem in the context of targeted killings is the categorical absence of judicial accountability in the national security sphere. And try though we might, that’s not something for which we can blame the Executive Branch. Instead, the fault lies with the courts for taking such a narrow view of the availability of Bivens claims in this context–and with Congress for not responding to those judicial decisions by providing more expressly for remedies in these cases. No OLC memo could ever solve those problems.