Posted on 03/08/2012 11:34:50 AM PST by Kaslin
Can the president kill an American simply because the person is dangerous and his arrest would be impractical? Can the president be judge, jury and executioner of an American in a foreign country because he believes that would keep America safe? Can Congress authorize the president to do this?
Earlier this week, U.S. Attorney General Eric Holder attempted to justify presidential killing in a speech at Northwestern University law school. In it, he recognized the requirement of the Fifth Amendment for due process. He argued that the president may substitute the traditionally understood due process -- a public jury trial -- with the president's own novel version of it; that would be a secret deliberation about killing. Without mentioning the name of the American the president recently ordered killed, Holder suggested that the president's careful consideration of the case of New Mexico-born Anwar al-Awlaki constituted a substituted form of due process.
Holder argued that the act of reviewing al-Awlaki's alleged crimes, what he was doing in Yemen and the imminent danger he posed provided al-Awlaki with a substituted form of due process. He did not mention how this substitution applied to al-Awlaki's 16-year-old son and a family friend, who were also executed by CIA drones. And he did not address the utter absence of any support in the Constitution or Supreme Court case law for his novel theory.
The Fifth Amendment to the Constitution states that the government may not take the life, liberty or property of any person without due process. Due process has numerous components, too numerous to address here, but the essence of it is "substantive fairness" and a "settled fair procedure." Under due process, when the government wants your life, liberty or property, the government must show that it is entitled to what it seeks by articulating the law it says you have violated and then proving its case in public to a neutral jury. And you may enjoy all the constitutional protections to defend yourself. Without the requirement of due process, nothing would prevent the government from taking anything it coveted or killing anyone -- American or foreign -- it hated or feared.
The killing of al-Awlaki and the others was without any due process whatsoever, and that should terrify all Americans. The federal government has not claimed the lawful power to kill Americans without due process since the Civil War; even then, the power to kill was claimed only in actual combat. Al-Awlaki and his son were killed while they were driving in a car in the desert. The Supreme Court has consistently ruled that the Constitution applies in war and in peace. Even the Nazi soldiers and sailors who were arrested in Amagansett, N.Y., and in Ponte Vedra Beach, Fla., during World War II were entitled to a trial.
The legal authority in which Holder claimed to find support was the Authorization for the Use of Military Force (AUMF), which was enacted by Congress in the days following 9/11. That statute permits the president to use force to repel those who planned and plotted 9/11 and who continue to plan and plot the use of terror tactics to assault the United States. Holder argued in his speech that arresting al-Awlaki -- who has never been indicted or otherwise charged with a crime but who is believed to have encouraged terrorist attacks in the U.S. -- would have been impractical, that killing him was the only option available to prevent him from committing more harm, and that Congress must have contemplated that when it enacted the AUMF.
Even if Holder is correct -- that Congress contemplated presidential killing of Americans without due process when it enacted the AUMF -- such a delegation of power is not Congress' to give. Congress is governed by the same Constitution that restrains the president. It can no more authorize the president to avoid due process than it can authorize him to extend his term in office beyond four years.
Instead of presenting evidence of al-Awlaki's alleged crimes to a grand jury and seeking an indictment and an arrest and a trial, the president presented the evidence to a small group of unnamed advisers, and then he secretly decided that al-Awlaki was such an imminent threat to America 10,000 miles away that he had to be killed. This is logic more worthy of Joseph Stalin than Thomas Jefferson. It effectively says that the president is above the Constitution and the rule of law, and that he can reject his oath to uphold both.
If the president can kill an American in Yemen, can he do so in Peoria? Even the British king, from whose tyrannical grasp the American colonists seceded, did not claim such powers. And we fought a Revolution against him.
You're right. It does. But the Congress was supposed to have something to do with it. The way things were set up the President was supposed to follow the orders of Congress. Lincoln changed all that. Don't you just love it?
ML/NJ
Yes he can and yes he will.
Laws in the hands of a conservative President, are not the same as laws under a POTUS that evidently hates America, fredom of speech, free enterprise,the Constitution.......need I go on?
I know his response...”C’mon guys.”
It probably wouldn’t be Barack himself anyhow. It would probably be one of his teleprompter writers.
True, one might have expected to see Lincoln accept the secession then ask the now smaller Congress for a declaration of war — and he probably would have gotten it, as the seceded states had also walked off with Federal property and were beginning to shoot.
It does not appear anyone in the North seriously tried to halt the hostilities.
I’d say war is war, whether one bullet or a thousand bombs... or in this case a single rocket taking out an opposition leader in a vehicle. I’m -very- sensitive to any threat to the Constitution, but this one gives me no heartburn at all.
Would we not have shot down Yamamoto’s airplane if his teenage child were also on board? Of course we still would have. War is war and Awlaki joined the other side. Anybody that joins the enemy whether soldier, spy or otherwise is liable to be killed on the battlefield wherever that battlefield is.
Already been used and approved - ask Andrew Breitbart, but it's not new - Vince Foster and Ron Brown found that out.
Can he kill dangerous enemy combattants? Yes. Can he kill political opponents? We’ll find out.
Thanks, Nully.
.
Is the USA officially in a declared war against another country?
Could I have a McDouble and a sm Carmel Frappe, please.
The real question is: Can they do that to a US citizen, HERE IN THE UNITED STATES?
Leave it to Freeper pull that Godfather quote eh Dfwgator LOL!
Yer doin’ it wrong....
So, then Lincoln got a Declaration of War from Congress against this CSA, right? Oh, no he didn't. He never recognized the secession. I'm not the one who wants things both ways. I'm just an honest Yankee reading my history books. (But, of course these were books I had to buy myself and not any that were assigned in my high school history classes. And even when I was in high school back in the early 60s, we were often getting a history critical of US action but NEVER in the case of the War of Northern Aggression.)
ML/NJ
Thanks for the ping, nut-job to nut-job.
Once the cult of personality in this or any country reaches a point at which the state and its leader (read dictator) are as one, mere critics become enemies of the state and, as such, are subject to extreme prejudice. In other words, they can be whacked.
Yes. Ask the children at Waco, TX. Wait, you can’t.
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