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.
"Nothing to worry about" they said...
"They wouldn't dare to use this against us that way..."
"We'll just have to make sure our guy always wins..."
"It'll be different this time..."
Yeah right...
” “It’ll be different this time...”
Yeah right...”
It IS different this time........worse : )
I see a problem with this, but I also see the hypocracy of these rats. They attempt to try these terrorists in civil court, but yet say they can kill citizens as if it is war. Which is it?
FEMA camp or life on the run... Not quite the weight loss plan I was looking for.
Either way, it beats Weight Watchers!!
Has nothing to do with Lincoln. As an honest Yankee reading history, you have to recognize that the the citizens of the Confederacy formally renounced their citizenship in their Ordinances of Secession.
I’m including Georgia’s below because it is the shortest and Sherman’s march through Georgia is at issue, but I believe all the Confederate States issued these:
“We the people of the State of Georgia in Convention assembled do declare and ordain and it is hereby declared and ordained that the ordinance adopted by the State of Georgia in convention on the 2nd day of Jany. in the year of our Lord seventeen hundred and eighty-eight, whereby the constitution of the United States of America was assented to, ratified and adopted, and also all acts and parts of acts of the general assembly of this State, ratifying and adopting amendments to said constitution, are hereby repealed, rescinded and abrogated.
We do further declare and ordain that the union now existing between the State of Georgia and other States under the name of the United States of America is hereby dissolved, and that the State of Georgia is in full possession and exercise of all those rights of sovereignty which belong and appertain to a free and independent State.
Passed January 19, 1861.”
Again, whether Lincoln recognized secession or secured a Declaration of War is immaterial to my simple point, the citizens of the Confederate States formally renounced their own citizenship in the United States of America under the Ordinences of Secession.
Sherman killed no (or very, very few) United States citizens on his march through Georgia, contrary to your assertion.
To add a bit to the discussion, I reccommend you learn about the Whiskey Rebellion. President Washington himself called out the militia without a Declaration of War from Congress and personally led the troops in supressing an insurrection (succession) in western PA. Pres. Washington didn’t recognize the “right” of secession either. Lincoln followed a precident set by Pres. Washington not more than a few years after the constitution was adopted.
I’m sorry you got such poor US History instruction in High School. Good on you for taking it upon yourself to learn more.
The USA is actually in a declared war against Al Queda. They declared war on us.
Don't get too hung up on the "declared" part. It's not like there's a particular form that has to be filled out and filed in triplicate. There is no "official declaration of war" letterhead, procedure, rubber stamp or anything else, apart from an authorization by Congress to use military force to do something. That part of the Constitution is there to assert that a President cannot go to war on his own without the approval of Congress, as a separation of powers issue, and that's all it says.
The whole "declaration" concept has been really badly misused, especially by Internet conspiracy buffs. The US never -declared- war on Germany for WW2 either, but Germany declared war on us, and our Congress most certainly authorized our going to war with them in Europe. A state of war can and does exist quite apart from any "declaration", magic words or pixie dust being sprinkled on a piece of paper.
So your suggestion is that Lincoln didn't recognize these people as citizens of the united States?
ML.NJ
From the Magna Carta of 1215, spelling out the rights of Englishmen:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
From the US Constitution (1789), after defining treason:
“No person shall be convicted of Treason unless on the Testimony of two Witnesses of the same overt Act, or on Confession in Open Court.”
Obama/Holder (2012): I am the law of the land. “Due process” means what I say it means.
Janet had to kill those children in order to save them. You can understand that, don’t you?
NONSENSE. Here's the text of the formal declaration:
Whereas the Government of Germany has formally declared war against the Government and the people of the United States of America:
Therefore be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Government of Germany; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.
(Signed) Sam Rayburn, Speaker of the House of Representatives
(Signed) H. A. Wallace, Vice President of the United States and President of the Senate
Approved December 11, 1941 3:05 PM E.S.T. (Signed) Franklin D. Roosevelt
The original document can be viewed at: http://www.archives.gov/global-pages/larger-image.html?i=/historical-docs/doc-content/images/ww2-declaration-war-germany-l.jpg&c=/historical-docs/doc-content/images/ww2-declaration-war-germany.caption.html
OK, I stand corrected on that. I think my original point stands.
The problem is that this administration & later ones will try to use this as a reason to kill “inconvenient “ people not only abroad but in downtown USA. This needs to be stopped.
So what happens when this President or a later one decides that because you are a conservative that doesn’t support their agenda that you are someone who needs to be targetted for a drone attack? There is to much room for abuse in what is being proposed ie the Federal Govt. has the right to target anyone anywhere at anytime for reasons that can be made up as they go along. That is the recipe for disaster.
I still wanna be Rorschach...
http://www.youtube.com/watch?v=VY4_hfqQW0E
Never compromise. Even in the face of Armageddon...
You and I don’t.....the rest can speak for themselves.
Well, if we have a President willing to kill citizens merely for political speech, then I don’t suppose that the Constitution or any law is something that would slow them down.
There’s a long way to go to that place, from here, where someone has actively joined an enemy military force during a time of war. If an American citizen had joined the Nazi army, I don’t think there would’ve been any need for due process for -that- guy that was different than any other German soldier. Same with those that have enlisted with Al Queda. They’ve made their choice.
Hm, please pop me on that list.
What’s that from?
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