Here's what my son just learned in 7th grade civics:

The Due Process Clause of the Fifth Amendment is in many ways the backbone of the rights guaranteed by the Constitution. Due process is the simple notion that the Constitution requires governmental procedures to be fundamentally fair before a person may "be deprived of life, liberty or property."

The Obama administration's "justification" for the targeted assassination of Anwar al-Aulaqi--an American radical cleric who was killed by a U.S. drone strike yesterday--is that "What constitutes due process in this case is a due process in war," which is apparently no process at all.

If any presidential administration is going to commit controversial, and by all standards I can find, illegal, acts (like the targeted killing of an American citizen outside the United States who is suspected of terrorism), then it should be forced to articulate publicly its rationale, not hide behind some secret memo--that's so George W. Bush.

Under the Bush administration, and now the Obama administration, the due process guarantee is losing force as it has historically in times of national security crises.

"Due process in war" means no due process. Once again, anonymous government officials roll out the meme that governmental excesses are reasonable and necessary during times of war.

How's that been working for us? During World War I, the government imprisoned people for years for speaking out against the war effort. During World War II, the infamous and shameful Korematsu case endorsed the internment of more than 110,000 persons based solely on their Japanese ancestry. During the Cold War thousands of innocent people lost their jobs, were the subject of congressional investigations, or were incarcerated for their association with the Communist Party.

WaPo's editorial board suggests today that courts should abandon the one iota of accountability for cabinet-level Bush-era officials who authorized torture. The editorial questions a court's decision that American contractors and whistleblowers Donald Vance and Nathan Ertel are permitted to sue former Defense Secretary Donald Rumsfeld.  

The lawsuit is based on claims that while Vance and Ertel were working as contractors in Iraq, the U.S. military kidnapped them, detained them without process, and tortured them using the "enhanced interrogation techniques" that Rumsfeld personally approved. Usually cabinet-level officials have immunity from lawsuits, but, in August, the fairly-conservative Seventh Circuit Court of Appeals found that the alleged conduct - the kidnapping and torture of American citizens - was so egregious that suit against Rumsfeld could proceed.  

While WaPo's editorial acknowledges that "it may be ultimately wrong" to bar Vance and Ertel from seeking justice in the courts, WaPo accuses the Seventh Circuit of overstepping its authority:

But the court overreaches by creating expansive new rights that are not supported by precedent and that would best be weighed by Congress.

WaPo suggests that Vance and Ertel should have "pressed their claims through the military justice system," and if that failed, then Congress should provide a remedy. Congress appears too busy fighting about how to keep the U.S. from defaulting on trillions in debt and bickering over when Obama will give his next speech. WaPo's suggestions would not only mean no justice for Vance and Ertel, but also - yet again - no accountability for the high-level officials who orchestrated torture policies.