Wednesday, March 7, 2012

Killing U.S. Citizens Without Trial: How the Obama Admin Got it Wrong

"nor shall any deprived of life, liberty, or property, without due process of law." - U.S. Const. amend. V.

I thought it might be helpful to begin this discussion with the text of the 5th Amendment to the United States Constitution.  This is the amendment that prohibits the federal government from taking your life, your liberty or your property without first going through "due process of law."   So what does "due process of law" mean anyway?  It means that before the federal government can deprive you of your life, liberty, or property it must first give you some form of notice and a fair hearing.
"This Court consistently has held that some form of hearing is required before an individual is finally deprived of [life, liberty or property]. The right to be heard before being condemned to suffer grievous loss of any a principle basic to our society. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner."
- Mathews v. Eldridge, 424 U.S. 319 (1976).
The thing you need to understand about the Constitution is that it's not a mere suggestion of what we might do if we feel like it.  It's a mandate of what we must do.  It doesn't say that a person "may" not be deprived of life without due process, it says no person "shall" be deprived of life without due process. It's very clear on this point.  It doesn't leave room for loose interpretation or ambiguity.  Like the terminator, it can't be bargained with and it can't be reasoned with.  It states very plainly what our government cannot do to us and if the government fails to conform to it, then the government is in violation and must be corrected. Therefore, when Attorney General Eric Holder doubled down on the Obama Administration's self-proclaimed right to kill U.S. citizens suspected of terrorist activity without any form of notice or trial, the Obama Administration got it just as wrong on this point as the Bush Administration did on torture.

Making the case on the other side of this issue, Eric Holder recently spoke at an event at Northwestern University where he said the following with respect to the recent predator drone strike against U.S. citizen Anwar al-Awlaki:

"Some have called such operations “assassinations.”   They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings.   Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.
Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.  
The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat...

Let me be clear:   an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.   As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties.   Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.   Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear.   Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.  
Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question.   It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel.   Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack.   In that case, our government has the clear authority to defend the United States with lethal force."

Eric Holder is an extremely intelligent Constitutional scholar, as is President Obama.  But on this particular issue of whether the federal government can kill U.S. citizens armed with nothing more than mere suspicion, it is difficult to see how these two brothers are reading the Constitution correctly here.  

The founding fathers were no strangers to U.S. citizens picking up arms and fighting for the other side (see Benedict Arnold).  So they were very much aware of this type of problem when they drafted the 5th Amendment in 1789.  Yet, despite this knowledge, they chose not to carve out any "traitor" exception to the Due Process clause.  Instead, they chose to deal with any U.S. citizen who attacks our nation by creating the formal charge of Treason in our Constitution (which, by the way, is the only crime that the founders actually defined in the Constitution).  The framers had recently witnessed Henry VIII constantly abusing his power by accusing everybody and their kid brother of treason if they so much as looked at him funny.  Therefore, the framers made it very clear in the Constitution that nobody could be put to death for treason unless they were first taken to court and properly convicted.  And that, ladies and gentlemen, is Due Process.  This whole business about predator drones and no trials?  Not Due Process.

Does the government have a duty to protect us from future terrorist attacks?  Absolutely.  Will things always go by the book as it undertakes this mission?  Of course not.  Will American lives be lost as collateral damage during this fight?  I'm sure they will be.  But here's the point: there's a very huge and very significant difference between (A) the federal government accidentally killing an American life in the fight against al Qaeda and (B) the federal government declaring that it has the right to do so whenever it pleases.  We made a decision 200 years ago to be a nation of laws and fairness, not a nation of Kings and unchecked tyranny.  Let's not lose sight of that fact simply because a few wack-jobs out there want to test our resolve.

  • Did the Obama Administration get it right here? How so?
  • Which is more important: our fundamental rights or our safety?
  • With respect to all the Democrats who are silently going along with this policy despite protesting the Bush Administration 8 years ago for the same stuff, do they have any credibility?
  • Is this merely a case of absolute power corrupting absolutely or do they know something we don't know?
  • Why doesn't the American public seem to care about this issue?
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