The Killing of al-Awlaki and the Death of the Fifth Amendment

The Fifth Amendment to the United States Constitution is unequivocal: no American shall "be deprived of life, liberty, or property, without due process of law."  No amount of ducking and diving will evade the inescapable fact that, for the first time, U.S. military officials in an aggressive overreach of constitutional authority deliberately targeted an American citizen for killing.  And no amount of legalistic wordplay will alter the reality that al-Awlaki was denied due process.

(No, Mr Gingrich, the signing of a death warrant by an American President does not constitute "due process," except perhaps in North Korea or Iran.  Our Founding Fathers taught us better than that.)

Al-Awlaki was an acknowledged "bad guy" who incited, trained, and prepared others to commit heinous terrorist crimes designed to inflict death and injury upon his fellow countrymen.   He was, assuredly, our self-confessed enemy, and he fully deserved to die --  but not without due process.   We don't sanction the use of government hit squads to assassinate U.S. citizens who are responsible for the most unspeakable crimes.  We don't do it even when they admit to those crimes.  Instead we invoke the moral authority of Constitution to insist on their right to due process, even in cases where the accused is unwilling to offer any defense.  Only when due process has been exhausted and the accused is found guilty do we have the moral authority to invoke the ultimate punishment.

The reason for this important Constitutional safeguard is self-evident.  In the words of Jameel Jaffer, the deputy legal director of the ACLU:

The government's power to use lethal force against its own citizens should be strictly limited to circumstances in which the threat of life is concrete and specific, and also imminent. It's a profound mistake to invest any president with the unreviewable power to kill any American citizen who he deems to present a threat to the country.

Crowing "attaboy" on national television to President Obama for his unlawful action, while providing much-needed macho stimulus for one's own presidential campaign, also encourages the continuing efforts of this statist administration to dismantle the Constitution piece by piece.  The stimulus wears off pretty quickly, but we are left to deal with the long-term consequences.  That kind of short-term thinking has led us into a whole heap of trouble in the economy, and we need to be a lot more careful in the future about continuing down a pathway that liberals appear so eager to clear for us.

Given that set of facts and circumstances, what is a conservative to do?  The problem is a practical one: the ludicrous spectacle of trials in absentia has undermined the moral authority of many a court, and we would do ourselves no favors by adopting such a procedure here.

I believe the answer lies in the creation of a new protocol empowering the courts to strip an individual of his citizenship on clearly specified grounds, including proven or admitted involvement in the planning and execution of terrorist activities.  Such a process could legitimately be conducted in the absence of the accused, provided a court-appointed attorney was made available to challenge the State's case for revocation.  Only if and when the case for revocation was accepted by the court (or jury) could an individual be stripped of his citizenship and the constitutional protection of the Fifth Amendment.

Such a procedure would be seen to be in full accordance with the concept of due process envisioned by the framers of the Constitution, but without the awkward artificiality and impracticality of a trial in absentia, or worse, the constitutional illegality of a death warrant issued by government fiat.

Jonathan Kinlay has a Ph.D. in economics and has held positions on the faculty at New York University Stern School of Business, Carnegie Mellon, and Reading.

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