Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor
The Fifth Amendment protects all United States citizens by guaranteeing us all the right of due process of law. The Fifth Amendment is meant to ensure that the government has to at least prove to a court that a citizen is guilty of any crime that he or she is charged with.
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Cornell Law
Without the Fifth Amendment, the government could grab any citizen off the street and proceed to jail them or execute them without a trial of any kind where the accused could mount a defense to the government’s charges. It seems that the Obama Administration is once again in the process of deciding whether it will unilaterally execute an American citizen believed to living in Pakistan. Or at least, preparing us for a kill decision that they have already made.
“A little more than two weeks after reporting by the Associated Press revealed that the Obama administration was “considering” the extrajudicial targeted killing of a U.S. citizen it accuses of “terrorist activity” abroad, new and similar reporting on Friday by the New York Times is extending the president’s case for assassinating a man now known as Abdullah al-Shami, a U.S.-born American citizen believed to be living in Pakistan.
The Times reporting, like the AP story on February 10, has all the hallmarks of an intentionally leaked story in which White House officials spoke with reporters on condition of anonymity in exchange for access to information deemed suitable for public consumption.” Common Dreams
While I would not doubt that Mr. al-Shami may be a terrorist responsible for killing or aiding the killing of many due to his alleged involvement in IED activities in Afghanistan, even the Obama Administration has confirmed that he is a United States citizen. According to the Fifth Amendment, that would normally mean that Mr. al-Shami would be entitled to due process.
According to our post 9-11 reality, that means the decision on whether he will live or die for crimes that he has not been officially charged with, will be done in secret and without any due process as we know it. Or should I say, as we used to know it. As you will recall, the Obama Administration has executed at least 4 American citizens without due process.
“The debate over Mr. Shami’s fate is the first time that the Obama administration has discussed killing an American citizen abroad since Anwar al-Awlaki was killed in a C.I.A. drone strike in Yemen in September 2011. It comes less than a year after Mr. Obama announced new guidelines to tighten the rules for carrying out lethal drone operations. When the president announced the guidelines, during a speech in May in Washington, the White House acknowledged that four American citizens had been killed in drone strikes during Mr. Obama’s time in office.
According to the White House, only Mr. Awlaki had been targeted.
As it was in Mr. Awlaki’s case, the Justice Department has been enlisted to evaluate whether a lethal operation against Mr. Shami is legally justified, but it appears that the Obama administration remains divided on the issue. Several officials said that the C.I.A. has long advocated killing Mr. Shami, and that the Pentagon, while initially reluctant to put him on a target list, has more recently come to the C.I.A.’s position.
The debate over Mr. Shami’s fate is the first time that the Obama administration has discussed killing an American citizen abroad since Anwar al-Awlaki was killed in a C.I.A. drone strike in Yemen in September 2011. It comes less than a year after Mr. Obama announced new guidelines to tighten the rules for carrying out lethal drone operations. When the president announced the guidelines, during a speech in May in Washington, the White House acknowledged that four American citizens had been killed in drone strikes during Mr. Obama’s time in office.” New York Times
It really should disturb any and all citizens when anyone is adjudged guilty by any non-judicial process. It really does not matter if the targeted individual is a scum bag or a saint. If the government can kill any citizen without due process, does that not endanger us all? Does it make you warm and fuzzy that the guidelines announced by President Obama last year switched drone authority from the CIA to the Military?
Doesn’t the decision to execute or not execute still come down to the President or his/her underlings in place of a Judicial process guaranteed by the United States Constitution? I am unaware of any Fifth Amendment exceptions that allows for any President to essentially have the authority to override the Fifth Amendment.
There are smart guys everywhere. It would sure suck if our Pres got bit on the ass by a drone on the golf course somewhere.
Very good Mike. That is why the Constitution is a truly amazing document. It has helped the less able-minded leaders since to avoid truly cataclysmic philosophical situations like, “what’s good for the goose is good for the gander…” and “what goes around, comes around.” It is so great, it even possibly protects against subsets of Murphy’s law. Guess that doesn’t say much about our standing pres.
It seems that having an Arab/Muslim name makes one an automatic terrorist suspect. If we all used the same type of names perhaps it would be more difficult to know who to demonize.
Ok fine, al-Shami is an American who some feel is being targeted without due process under the 5th Amendment. There is a simple answer for all of this.
1. Indict him
2. Try him in absentia but with full legal representation on his behalf before a secret jury of his peers. A member of Congress from both parties could be tasked to swear that the proceedings were fairly adjudicated. The trial would have to be in secret to insure that all concerned — judge, jury court personnel etc were protected.
3. If judged innocent at that point, the drone order would be rescinded. If found guilty by a jury of his peers, then the drone order would be implemented at the earliest opportunity.
4. This should appease both sides as well as giving al Shami or any other terrorist (Americans only) their respective day in court.
5. If judged innocent the respective defendant would be “cleared” up to that point only. His ofuture actions would judge whether he stood trial again in the future. There should be no “Teflon Dons” when it comes to terrorists.
Be careful what you rationalize.
Technology spreads.
It is only a matter of time before administration officials and drone operators fall under the shadow of drones operated by most any third world military power.
I can’t wait to hear the demands for respect for international law and due process then.
mespo,
I agree that self preservation is important, but why have a Fifth Amendment if someone outside of the judiciary can decide who is to live or die? We can take care of ourselves while at the same time protecting our Constitutional rights. Indeed, I think we must or we have lost more than a battle with terrorists.
Ezra Pound was in arms for a nation with which we were at war. There is no “declared war” on Pakistan or Afganistan or some group therein. And therein lies the problem. Congress should pass a Declaration of War against al Qaeda and other terrorist entities and those who fight for them are enemy combatants and traitors if they are citizens. We shot the Redcoats back when I warned that they were coming. They were British citizens, as were we. The buck started there. It wont stop in Pakistan.
All I know is that my Fifth Amendment Rights, along with my 1st and 4th are being arbitrarily decided by a group of wo/men meeting in SECRET, devising policy in SECRET and rushing letters to a SECRET court appointed by one Chief Justice without review.
On a side note, I’m hooked on an English program called ‘TIME TEAM’.
They hunt for and discover ancient ruins from early English history. Normans, Druids, Saxons, etc. Ya know, Pre USA Constitutional days where the King decided what the law was any given moment…
Now we seem to entering our Post-Constitutional age.
Nick makes a good point, as are several others. But I do not see how a few guys in a room handing out the Trotsky treatment for whoever THEY think deserves it serves our nation very well. It’s a fast road downhill from here…
Rights for ALL…
… Or Rights for none.
That is where the problem lies. In the end, a terrorist can become whoever you want a “terrorist” to be to carry out an execution. A terrorist could quickly become just someone who doesn’t agree with the standard position on things. That was precisely one reason why we have a United States today. It should never be convenient for a government to kill someone. Have we not seen enough cases of eroding of constitutional rights on this blog to realize government execution will become convenient for whatever reason? Governments do not reverse course on these issues.
Terrorism is an asymmetrical war and does not fit our military or criminal codes. That said, there needs to be a legal process of some sort than just arbitrarily killing US citizens. I have no problem w/ killing Awlaki. But, now we need to put a system in place to deal w/ his ilk. Because there are and will be more.
Imagine the National dialogue had the New York Times ran the headline:
China Debates Droning Chinese Separatist living in San Francisco Cal. USA
Would the President take to the airwaves to:
A) Proclaim this a provocative move toward acts of war against the USA
B) Explain why it is necessary to use tactical targeted limited strikes
Are we safer, yet?
As troubling as the extrajudicial execution precedent is, where there is no feasible way to capture a US citizen that the President has good reason to believe is actively preparing to commit terrorist acts, those making the argument against killing the US citizen terrorist should first have to draft the President’s remarks explaining his refusal to take an opportunity to eliminate the threat that he will give at a press conference after a large number of people have been killed by that terrorist.
Randy, while I might be prepared to hang Pound for the denseness of his poetry, which seemed to suck the air out of the room, I could never see executing someone for expressing their political views, broadcast or not.
If you’re unable to tolerate a persons expression of beliefs, then you’re not fit to be an American.
RTC If Pound had only been living in Italy and was simply writing poetry, I would have no problem with not killing him. The FACT is that he was broadcasting for our enemies in wartime. THAT is the definition of treason, and he richly deserved the death penalty. The same holds true for other Americans who affiliate with Al Qeada. They are legal targets and should be killed at the first opportunity. Simple.
An important piece here, rafflaw. Like our State Dept. official, I see no footnotes either but I wonder if self-preservation trumps the Bill of Rights. That’s the classic question.
Treason = enemy combatant = “POOF” *!*
I have no problem with killing an American who is engaged in terrorism or supporting those who are in armed conflict with the US and are abroad, safe from being put on trial in the US. It is like the police confronting an armed crook who refuses to surrender. Killing that person without trial is perfectly legal, and justified, even though he will have no trial.
I have yet to get an answer from opponents of Obama’s drone program about whether or not it would have been legal to target Ezra Pounds villa in Italy for bombing. Pound as you may know was making radio broadcasts in support of the fascists and Hitler during WWII. I think it would have been perfectly legal and justified to have blown him away with US Army Air Corps bombs. My only regret was that he escaped his just punishment through influential friends after the war. I think that he should have gotten the same treatment as did Lord Haw Haw. The Brits arrested and hung him by the neck until he was dead. Pound should have joined him on the scaffold in the US.
Killing Pound wouldn’t have been legal for the same reason that the killing of Al-Awlaki wasn’t legal- the Fifth Amendment. “Legal” doesn’t mean right or just or fair, it means “within the law”. Maybe you have a convincing argument for killing Pound or Woodhouse or al-Shami, maybe you believe without a shadow of a doubt that such killings would be just and proper. That in no way makes them “legal” in the necessary sense.
I don’t recall there being much of an outcry when Anwar al-Awlaki was killed. The only good terrorist is a dead terrorist.
There was certainly an outcry- it might not have been large, but I can remember people around me speaking out, calling their representatives, etc. I’m sure Glenn Greenwald wrote a piece or two about it.
And re: “The only good terrorist is a dead terrorist”- It seems that even if that’s a reasonable statement, you’re still leaving the designation of “terrorist” up to unelected, unaccountable people in the executive branch, who have no incentives to make decisions that line up with either the constitution or the will of the people. Trusting decisions of life or death to illegal processes is lunacy, or at least, incredibly foolish.