Executive Power, Drone Executions, and the Due Process Rights of American Citizens

Few conflicts have tested the mettle of procedural due process more than the War on Terror. Although fiery military responses have insulated the United States from another 9/11, the Obama administration’s 2011 drone execution of a U.S. citizen allegedly associated with al-Qaeda without formal charges or prosecution sparked public outrage. Judicial recognition that this nonbattlefield execution presented a plausible procedural due process claim ignited questions which continue to smolder today: What are the limits of executive war power? What constitutional privileges do American citizens truly retain in the War on Terror? What if the executive erred in its judgment and mistakenly executed an innocent citizen? Currently, no legal regime provides answers or guards against the infringement of procedural due process the next time the executive determines that an American citizen must be executed to protect the borders of the United States. The executive remains free to unilaterally target and execute an American citizen via drone strike without the formal process that typically accompanies a death sentence under U.S. law. Protected under the aegis of national security, executive discretion has trumped the procedural due process rights of American citizens. To contextualize these issues of presidential power and procedural due process, this Note first surveys the modern War on Terror by examining the statutory authority enabling drone strikes and the scope of executive warmaking powers. Next, this Note employs the balancing test devised by the U.S. Supreme Court in Mathews v. Eldridge to assess the due process afforded a citizen targeted for extrajudicial drone execution under the executive’s unilateral methodology. Two potential safeguards—ex post and ex ante judicial review of drone strikes—are examined as possible defenses against the unjustified execution of an American citizen. After comparing these two systems of judicial review, this Note details and advocates for the congressional implementation of a narrowly tailored ex ante schema to provide an additional layer of process and reduce the risk of an unfounded drone execution. By lowering the likelihood of an erroneous execution, this precise ex ante legal regime strives to fulfill the procedural due process requirements delineated in Mathews v. Eldridge. This finely tailored ex ante regime mitigates executive discretion while still bending to meet the onerous demands of national security imposed in the modern age of terror

CONSIDERATIONS ABOUT THE FORMS OF JUDICIAL RESPONSIBILITY IN THE MATTER OF BUDGETARY EXECUTION

The social life is developing in an organized way based on some social norms and regulations which are necessary for the good development of human activities in any domain, these norms establishing a certain way in which the subjects of social relations mbudgetary execution, judicial responsibility, contravention, infraction

"Auction Price Formation with Costly Occupants: Evidence Using Data from the Osaka District Court"

Foreclosure properties sold at Japanese judicial auctions are delivered to buyers with an unclear title when occupants exist, because the foreclosure laws protect occupants from compulsory execution of auctions. The existence of occupants theoretically affects the auction price through two channels. First, it affects the reserve price, and this changes in auction price. Second, the number of bidders changes in response to changes in the reserve price that is controlled by occupants, and this changes the auction price. Using data from the Osaka District Court, we empirically find that the existence of occupants in properties reduces the auction price through two channels.

Access to Electronic Data for Criminal Investigations Purposes in the EU. CEPS Paper in liberty and security in Europe No. 2020-01, February 2020

Within the EU and across the Atlantic, investigation and prosecution of crime increasingly relies on the possibility to access, collect and transfer electronic information and personal data held by private companies across borders. Cross-border access to and collection of data for the purpose of fighting crime raise several legal and jurisdictional issues. This paper comparatively examines the constitutional, legal and administrative frameworks on access to and use of digital information in cross-border criminal justice cooperation in a selection of EU member states. It presents key challenges in the application of the EU mutual recognition and mutual legal assistance instruments, as well as the existence of 'promising practices' across the EU and in transatlantic relations. The paper also assesses a set of legal and practical questions raised by the ongoing policy and normative debate on the so-called “E-Evidence” Package. Finally, it sets out a number of policy options and practical ways forward for EU and national policy makers to promote judicial cooperation for cross-border access to and collection of electronic data in line with EU and international rule law and fundamental rights standards

Four Problems with the Draft Restatement’s Treatment of Treaty Self-Execution

The American Law Institute has embarked on the challenging task of restating the confounding distinction between self-executing and non-self-executing treaties. In some respects, the current draft of the Fourth Restatement of Foreign Relations Law represents an advance from the treatment of the subject in the Third Restatement (Third). At the same time, the current draft retains, and may even aggravate, some of the flaws of that earlier treatment. This Essay suggests four ways the current draft could be improved. First, the draft should explicitly recognize that the concept of self-execution is not a unitary one. The self-executing label encompasses four distinct types of reasons why a treaty might require implementing legislation. Second, the draft should abandon the claim that the self-executing or non-self-executing nature of a treaty is “essentially” about the treaty’s judicial enforceability. Third, the draft should qualify its claim that self-execution turns on the intent of the U.S. treaty makers. Finally, the draft should modify its claim that there is no presumption either in favor or against self-execution. There is substantial support in case law for a presumption in favor of self-execution with respect to one of the four categories of self-execution— the “intent-based” category

Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties

Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution’s declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international friction that could be expected to result from treaty violations and to capture the benefits of a reputation for treaty compliance. The Supremacy Clause gives treaties a domestic judicial sanction that they would otherwise lack. It makes treaties enforceable in the courts in the same circumstances as the other two categories of norms specified in the clause—federal statutes and the Constitution itself. The sole exception to this rule is for treaties that are non-self-executing in the sense contemplated by the Court in Foster v. Neilson. The concept of a non-self-executing treaty fits uneasily with the Supremacy Clause, as reflected in the common but untenable view that non-self-executing treaties lack the force of domestic law. According to Foster, a non-self-executing treaty is not enforceable in the courts because it is addressed to the political branches. But determining which treaties are so addressed has been challenging. Treaties generally leave the question of domestic implementation to the domestic laws of the states-parties, and our domestic law (the Supremacy Clause) directs judges to give them effect. The author argues that the Supremacy Clause establishes a default rule that treaties are directly enforceable in the courts like other laws, rebuttable only by a clear statement that the obligations imposed by the treaty are subject to legislative implementation. If the stipulation had to appear in the text of the treaty, the clear statement rule would present problems for U.S. treaty makers seeking to control the domestic consequences of multilateral treaties. To address this problem, the treaty makers have developed a new form of clear statement, the “declaration” of non-self-execution. However, scholars have questioned the compatibility of such declarations with the Supremacy Clause. The author concludes that the treaty makers have the power to limit the domestic effects of treaties through declarations of non-self-execution. On the other hand, if the Constitution were understood to establish a default rule of non-self-execution, declarations of self-execution would stand on more tenuous ground. Thus, a default rule of self-execution is not only more consistent with the constitutional text and structure and with Supreme Court precedent, it is also normatively attractive because it leaves the treaty makers with the power to control the domestic consequences of the treaties they conclude

Medellin and Originalism

In Medellín v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who had not been given timely notice of his right of consular notification and consultation in violation of the United States’ obligations under the Vienna Convention on Consular Relations. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellín’s case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. The five Justices who signed the Chief Justice’s Majority opinion, including the Court’s self-proclaimed originalists, thus joined an opinion that construed the Constitution’s Supremacy Clause without any serious consideration of its language or the history of its drafting, ignoring evidence of the Supremacy Clause’s original meaning cited by the dissenting Justices. This Article explores the meaning of originalism in the context of the Court’s Medellín decision and contends that the Majority’s opinion, while perhaps defensible on other grounds, cannot be reconciled with any identifiable version of originalism. Rather it is best understood as a decision reflecting the conservative Majority’s political commitment to favor principles of U.S. sovereignty and federalism over compliance with international obligations, even when the consequences of such a commitment is to enable state governments to undermine the foreign policy decisions of the political branches of the federal government. Ultimately, however, the Article concludes that Medellín’s case never should have come before the Court. The President has a duty to “take Care that the Laws be faithfully executed.” The Court determined that the Bush administration did not satisfy this duty by issuing an Executive Memorandum directing states to comply with the judgment of the International Court of Justice. That being the case, the President now must comply with his Take Care Clause duties by working with Congress to make certain that federal law compels compliance with the International Court of Justice’s judgment. Indeed, this Article contends that the Medellín case is emblematic of the U.S. executive branch’s broader failure to ensure that all treaties requiring domestic implementation are in fact implemented so as to avoid placing the United States in violation of its international obligations

Two judicial postmortems that went awry 1870 & 1908

The first instance of an exhumation of a cadaver for a judicial post-mortem took place in 1870 in connection with a murder case. Knowledge, on the part of the pathologist, of the scene of the crime and of the events leading to the murder are important as they may suggest to the pathologist what to look for in the corpse, but only a thorough autopsy may reveal the cause of death. This is possible even after exhumation of a decomposed cadaver.peer-reviewe