Wednesday, February 6, 2013

Memo detailing the killing of US citizens connected with Al Qada

English: The Bill of Rights, the first ten ame...
English: The Bill of Rights, the first ten amendments to the United States Constitution Česky: Originál Listiny práv, prvních deseti dodatků k Ústavě Spojených států amerických Deutsch: Die Bill of Rights genannten ersten zehn Zusatzartikel zur US-amerikanischen Verfassung, die den Bürgern bestimmte Grundrechte garantieren Español: La Carta de Derechos de los Estados Unidos, el término por el que se conocen las diez primeras enmiendas de la Constitución de los Estados Unidos de América (Photo credit: Wikipedia)
Here's where you can access the memorandum of law:

And here are my thoughts:

1.  The issue of citizenship is a red herring.  It's purely political.  Read the Fifth AMendment to the US Constitution.  It accords due process of law to "any person," not "any citizen."

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.

As for the status of "citizen," I agree with the editorial in the Washington times: 

To wit:

President Obama’s legal team has overlooked a better justification for the killing. Last November, when it was first reported that al-Awlaki had been placed on the Obama administration’s death list, The Washington Times introduced the argument that the terror leader was no longer an American citizen. Even though al-Awlaki had not publicly renounced his citizenship, he had engaged in the type of “expatriating acts” that would constitute a “fair inference” that he no longer considered himself to be an American, per the test in the 1980 Supreme Court case Vance v. Terrazas.

Citizenship should not figure into this discussion.  The issue is what due process must be accorded to any target for assassination within the ranks of Al Qaeda.

2.  That being said, I would argue that the memorandum's use of the word "imminent" in conjunction with threats as the justification for acting distorts the common meaning of that word.  The memo asserts that the nation cannot be protected if the government is required to wait until an attack is imminent.  I agree.  The window of opportunity may open in between the targets illegal acts.  Since that is the case, why isn''t it feasible for the "High Official" (presumably the president, but it would be nice to know how far reaching or narrow that category is) to have his/her finding reviewed by a special court in camera, ex part, before the green light is given to kill the target?  

This would satisfy, I think, the ACLU's concern about a lack of checks and balances, as is traditional in our democracy.  And, since "imminent" is a flexible term, I can't see why such a check on the executive branch wouldn't be feasible.

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