Whether you see it as a war model or as a prevention model, the same principles largely apply: the US has a legitimate interest in protecting itself from domestic attacks, whether they originate in foreign governments or sub-national organizations such as Al Qaeda. What are a country’s options for legitimately defending itself from these attacks? Do they have to simply wait until they are attacked, and then respond through a formal declaration of war against what is possibly a transnational terrorist group? Are they forced to sit and wait until incursions are made into their territory? If the USSR launched cruise missiles at the US would the US have had to wait until US airspace was breached before responding? Should it be different if it’s a terrorist organization with a dirty bomb? And again, was killing bin Laden (when we’re not at war with Pakistan) an execution without due process? Would it be an execution without due process if a drone strike was employed instead?
As I said in a prior response, the due process standard changes depending on whether the purpose is law enforcement or prevention. The suicidal and the mentally ill can be detained with less due process than the criminally accused. Intelligence surveillance requires less due process than law-enforcement searches.
