Or, as Saletan points out, those three elements "by deduction, are the due process test" (2011).
But this ought to leave a bad taste in one's mouth because all three of these elements can be manipulated to violate one's due process right.
"Which leaves us with an awkward bottom line. If the target is a suspected terrorist, "imminence" can be redefined to justify killing him. If the weapon is a drone, feasibility of arrest has already been ruled out -- that's why the drone has been sent to do the job. So in any drone strike on a U.S. citizen suspected of terrorism, only one of the three questions we supposedly apply to such cases is really open: Has he been fighting alongside al-Qaida? If he has, we can kill him. That's the same rule we apply to foreigners. In effect, citizenship doesn't matter. The "due process" test is empty" (Saletan 2011).
The "due process" test is empty because the criteria have been changed. Instead of trial by jury, it's an "imminent" threat evaluation done by a group of military commanders halfway around the world. Additionally, feasibility of apprehending an individual can be arbitrarily decided and, subsequently, ruled out. One can argue that a suspected U.S.-born terrorist is too far away to send federal agents after him; therefore, it is easier (better, more cost-efficient) to send predator drones. Lastly, one can argue that even if an individual has dubious associations with terrorist organizations, the suspect is himself a terrorist.
The point is all of this rationalizing with U.S.-born, suspected terrorists leads to a sliding-scale procedural process that is not based off of justice per se (or Constitutionally enumerated rights), but based on convenience, arbitrary judgments, and cost-saving measures. So the answer to the question of can someone's right to due process be violated, the answer is of course "yes," and all it takes to understand this is reviewing the process by which the U.S. government abrogates the rights of U.S.-born terrorists.
Now, there is...
In many cases, all one has to prove is that he/she was denied one of his/her substantive due process rights, i.e. jury, counsel, etc.
Justin Wolfe, a drug user who was falsely convicted of killing his drug dealer, Daniel Petrole Jr., was given habeas corpus relief because a District Court Judge found that his due process rights were violated during his trial. The Judge said that the "array of prosecutorial actions in this case 'served to deprive Wolfe of any substantive defense in a case where his life would rest on the jury's verdict.' The court, he concluded, 'finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process.'
In other words, Wolfe's due process was violated because there were prosecutorial accusations that were used against him to unfairly influence his impartial jury. And the initial verdict (he was on death row) would have deprived him of his life.
Works Cited
Cornell University Law School. (n.d). Bill of Rights from Cornell University Law
School. Retrieved from:
http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentv.
Lithwick, D. (2011, July 14). Murder Conviction Most Foul: What Justin Wolfe's case in Virginia tells us about death row cases everywhere. Slate.com. Retrieved from http://www.slate.com/articles/news_and_politics/jurisprudence/2011/07/murder_c
onviction_most_foul.single.html
Saletan, W. (2011, Oct 3). Drones Are Death Warrants: Can the U.S. send drones to execute American citizens like Anwar al-Awlaki without trial? You bet.
slate.com. Retrieved from http://www.slate.com/articles/news_and_politics/human_nature/2011/10/anwar_al_awlaki_and_drone_strikes_on_u_s_citizens_due_process_wo.single.html
Stauss, P. (2002). Due Process. Cornell University Law School. Retrieved from http://www.law.cornell.edu/wex/due_process
