Yep. Which does nothing to add the words “except when the citizen is determined to be an enemy by the President” to the Constitution.
As a matter of policy, I suppose you could make that argument. You could certainly argue that if a US citizen is in custody, the Constitutional must apply, but if they’re not, it doesn’t. But I don’t see those words in the Constitution or the caselaw. Of course, I think that will mean that the government would have more incentive to just kill US citizens, but at least there are policy disagreements to be had there.
You see the words you put in this part of your post? The “on the field of battle”? Those words 1) Aren’t in the Constitution and 2) apply to the battlefield. As I’ve said over and over, I do not believe that the entire world is a “battlefield” for the purposes of the Constitution. Afghanistan, yes. Yemen … not so much. And if you define the world as the “battlefield”, there is absolutely nothing in your position to stop the government from extra judicial assassination of US Citizens in the US on nothing more than the say so of the President. That scares the hell out of me.
And really you are missing the whole point from a constitutional perspective. Due Process is to protect citizens against actions of the government that deny due process.
Say a local sheriff “suspects” I’m a drug dealer, he has no proof, doesn’t bother with going to a prosecutor or a court, he comes into my house and evicts me and takes possession of it.
That has denied me of due process.
Tomorrow I decide to move to North Korea because it’s a life long dream of mine. I enlist in the North Korean military. Based on the propaganda value of having an American defector, I am promoted to a high rank in the North Korean military and am placed in charge of broadcasting propaganda messages over the radio.
Next year, the United States and North Korea go to war. One of the first things that is done is the United States uses a cruise missile to destroy the radio station I am broadcasting from, killing me.
Have my due process rights been violated?
No, because I was not entitled to any process, I was an agent of the enemy and waging war against the United States. I was a lawful military target. My American citizenship was irrelevant. And on the field of battle I am entitled to no different treatment from Yamamoto or Uday Hussein, the situation would only change if I was taken into custody by the United States.
Further, I understand that going back to the Magna Carta due process was seen as a protection against not just imprisonment and seizure of property, but also against deprivation of life. At the time it was not totally unheard of for agents of the King to basically summarily execute people.
However, considering the differences in society in 1789-2011 versus 13th century England, I have to strongly wonder if any due process cases in American history have ever involved agents of the State who have just outright killed an American citizen. Any prominent Due Process case I can personally think of have involved persons suing against seizure of property or suing to be released from custody. Is there any precedent in American law in filing a due process case because an agent of the government has killed someone? In the Tennessee v. Garner case which modified the old rule on fleeing felons, the SCOTUS ruled that shooting a fleeing suspect is a “seizure” and that under the fourth amendment you cannot do that unless it is reasonable (the 4th protects against reasonable seizure), it found that shooting someone in the back who was unarmed and not a danger to anyone was not a reasonable seizure.
That question is neither “here nor there” in my discussion about al-Awlaki, it is instead a question of curiosity. Not being a lawyer and not having access to Lexis-Nexis I wouldn’t know how to easily get an answer to such a question. Even more interesting would not just be “agents of the government” killing someone, but agents ordered by the President to kill someone.
As I already mentioned the revision to the Fleeing Felon rule in Tennesse v. Garner held that shooting a fleeing suspect is a form of seizure. It then ruled that the Fourth Amendment protects against unreasonable seizure, and that shooting a fleeing burglar in the back of the head, who was unarmed, was an unreasonable seizure. It had nothing to do withfifth amendment due process concerns.
I’m not saying they are in the constitution or the case law. I’m also saying that they have been observed in the “history of the United States” and their absence from the case law suggests there has not been significant issue with such actions in the history of the United States.
When Washington called a militia for purposes of waging war on the rebellious Pennsylvania farmers, it does not appear that there was significant legal opposition to his actions. By entering open rebellion I would argue those individuals became valid targets of the President’s war making power.
Where possession becomes important for persons like John Walker Lindh, Yaser Hamdi, and al-Awlaki is this: As long as they are continuing to operate in organizations that are at war with us, they are members of that organization and valid targets of military action. Military action, as the history of the United States shows, is not subject to “judicial review” for each and every killing. Instead soldiers are expected to adhere to certain institutional rules on Rules of Engagement, the Geneva Convention and other regulations. As long as someone is waging war against the United States, I do not think it matters whether they are citizens or not, they can all be treated the same (and killing them is valid–war is about killing.)
However if one of those persons “happens to come into U.S. possession” say they are turned over to us or they surrender on the battlefield since they are citizens of the United States they must be afforded due process rights when it comes to determining what must be done with them.
Not everything must be in the constitution. It does not say in the constitution “the President can order military units to march upon the enemy, capture the enemies towns and facilities, and kill the enemy’s forces.” Instead the Constitution says:
It also says:
So then Congress has the authority to authorize military action, and the President is the C-in-C. It does not get more specific, because it really does not need to, as Commander-in-Chief it is assumed it will then be the President who gets to decide how military action is undertaken. It is Congress that gets to decide who we take against, that gets to approve the waging of war, but the Commander-in-Chief decides operationally how that war is to be waged.
What I forgot to add is, that based then on my reading of the Constitution, if Congress authorizes the President to make war on certain organizations (which it did with the AUMF) then that is Congress giving the President all the validity he needs to decide where those organizations are.
As far back as we have had war in the United States, when we have declared it, it has been declared against the enemy everywhere.
When we declared war on Germany (in response to their DoW) we were not limited to waging war only against German forces in the positions they were in on that date and time. We could attack German forces anywhere in the world.
Likewise, with the current AUMF, which clearly gives the President authority to wage war against al-Qaeda, we can wage war against al-Qaeda anywhere in the world.
I don’t agree with your proposed definition. Assassination carries a perjorative weight; we think of assassinations as treacherous or illegal acts of murder for political purposes, not as acts of legitimate warfare undertaken for military purposes.
Fine, change my position to: The assassination of US citizens without due process violates the Due Process clause AND the Fourth Amendment. I was using Garner simply as a jumping off point.
Help me out here. Has a US President ever assassinated a US citizen without due process before? I would posit that the lack of caselaw stems not from the baselessness of the challenge, but rather from the lack of actual cases where the US has killed it’s own citizens without trial.
And, despite Hamdi and Hamdan entering open rebellion, the Supreme Court found that, while they may become valid targets, that power is not unlimited. And, once again, I think the deprivation of life is quite more severe than deprivation of liberty for 6 years.
And, again, I find nothing in the Constitution, nothing in Hamdi or Hamdan, and nothing in the other caselaw, to indicate any legal basis for your “possession and control” distinction. As I said, it certainly could be a policy argument, but I don’t think it holds any water Constitutionally or legally.
Well, when you are discussing a deviation from the clear language of the due process clause (AND the 4th Amendment, don’t want to forget to add that too), I would suggest that the burden would be on you to establish the basis.
And, again, Congress cannot authorize the President to violate the Constitution.
We do have a point of agreement in here, though. Because it involves military actions, an authorization by Congress of military force, the US Citizen is on foreign land, and the deference to the President in national security matters, I don’t think the full protections of the Constitution, or the full requirements of due process, apply. No need for a civil trial. I have no problem with a trial in absentia (if they have a representative for their interests). Flexible hearsay rules, etc. I don’t think every facet of the Constitution or rules of evidence need to be followed in these cases.
But that doesn’t mean none of them do. And, at a very minimum, I think the Constitution requires more than “The President said so” before the government kills a US citizen.
As an exercise, do you think the President can order the assassination of US citizens in the US?
Including the US? To you, President Bush could have had Padilla summarily executed rather than captured and detained? President Obama can order the assassination of any US citizen living in the US right now, without a trial, as long as he says the person is an enemy? And collateral damage for a strike to take out this enemy is within his military power too?
You’re scaring me. And it scared the founders too, having one guy decide he can kill or detain any of his citizens based only on his say so. That’s one of the reasons we have a Constitution in the first place.
That’s not accurate. He was a member of Al Quaeda and one of their recruiters.
Wearing a uniform is not a determinant. If an enemy army took their uniforms off but kept fighting, they would still be valid targets of war, for example.
Whether or not it’s the most expedient way to fight “the War on Terror” (honestly I’m not certain), the current state of geopolitics is different and former ways of dealing with things are inadequate. Terrorist forces are not the armies of sovereign states, nor are they civilian forces whose motive is the illegal earning of money. They’re non-state actors involved in an organized military campaign on a global level. Our previous categories don’t hold.
If you cut back on the vacuous snark, maybe you can identify where exactly “international law” or “American law” specify and delineate the concept of a “battlefield” and define what, exactly, qualifies as a “battlefield”. Because, rather obviously, a pitched battle is quite different from a battle against terrorists, and even military actions against conventional military forces can sometimes take place within urban enviornments. What, an enemy general sitting in a house is a valid target of war, but an Al Quaeda recruiter isn’t?
You do realize that logical flaws in your argument aren’t actually “strawmen”, right? The options are binary, actually, if you’re going to do anything about the guy. You can take civil police action, or military action. Or you can choose not to do anything at all, and just ignore him. But it’s not a strawman to point out that if you’re going to do something and you don’t take military action, it has to be civil police action.
Or, and stay with me here, you could do as I suggested in this very thread, and try him in a military tribunal or court, get, if the evidence supports it, a conviction and a death sentence, and THEN take military action against him. I know, weird isn’t it? The idea that military action can be proceeded by something like due process.
I did not say that the Constitution was a ruling by the Supreme Court. Please try to read with comprehension and take what I say into context.
I did note that the Supreme Court has ruled on many things regarding the Fifth Amendment, which seems to be your main argument against his assassination.
Your argument is that he should not be assassinated because he was born in the U.S. and deserves some kind of trial (an absentee trial is the kind of trial we don’t hold in these cases, btw). You’re saying that President Obama is denying him his Fifth Amendment rights.
I gave several reasons why I disagreed. American law is** not** so cut and dry. I’m sorry if you can’t see that. You can “be done” with me all you like; it’s not going to change the law.
**Which **military tribunal? You want us to court him off to Hague? Or a U.S. one? We would have to detain him first. If we can’t do that and he is actively engaging in combat or planning to execute acts against the United States, we can -and should- kill him first.
Except you can’t. Like somebody pointed out, you can’t try somebody in absentia in this country if he’s not in custody or court for at least the beginning of the trial. That would be a pretty clear sixth amendment violation, because you’re denying him the right to confront his accusers and participate in his defense. There’s no question that if we have him in custody, we can try him, and, if convicted, execute him. But we can’t do that unless or until he’s in custody.
I remember reading that earlier, but I can’t find the post anymore. Can you link to it? Better yet, can we have a cite, rather than someone just saying it in this thread?
I notice you totally dodged all my questions about your ‘battlefield’ metric. Guess it really was only vacuous snark.
Again, spend less time in vacuous snark and more in trying to come up with a cogent argument. Can you ‘stay with me’ on this? We don’t enjoy eztraterritoriality, our FBI agents aren’t always equipped to storm Al Quaeda strongholds, nations in which AQ members are resident do not always allow/cooperate with American arrest requests, etc, etc, etc.
So there is not an automatic requirement to arrest even any given American who’s commutes treason and/or taken up arms against us.
As I said before, I don’t believe the full protections of the Constitution apply in Al Awlaki’s case. The Constitutional protection against trial in absentia would be one that I don’t think extends to him. I’m not saying he must be tried in civil court, with all the protections afforded. I’m saying that he should have at least a modicum of due process. To me, I think appointing a lawyer to represent his interests fairly, and a military tribunal trial would meet our requirements under the Constitution for people in Al Awlaki’s situation.
Why wouldn’t the full protections of the Constitution apply in Al Awlaki’s case? If he’s not there to confront his accusers and plan his defense, it seems like what you’re suggesting is a show trial, and I don’t see how that’s any more respectful of his rights than just killing him without trial.
While that’s certainly convenient for your argument, what coherent metric, exactly, are you using to determine that certain bits apply and others don’t? And can you finally offer your citation for your “battlefield” metric?