Death Without Due Process

This post was originally published by The Philadelphia Inquirer. On Wednesday, Hina Shamsi will take part in an Intelligence Squared debate on the question "Does the president have constitutional authority under the due process clause to kill U.S. citizens abroad, or is it a violation of this clause to unilaterally decide to target and kill Americans?"

The White House is once again weighing whether to kill an American citizen overseas as part of its "targeted killing" program.

This extrajudicial killing program should make every American queasy. Based on largely secret legal standards and entirely secret evidence, our government has killed thousands of people. At least several hundred were killed far from any battlefield. Four of the dead are Americans. Astonishingly, President Obama's Justice Department has said the courts have no role in deciding whether the killing of U.S. citizens far from any battlefield is lawful.

The president, it seems, can be judge, jury, and executioner.

This is not the law. Our Constitution and international law strictly limit extrajudicial killing, for good reason. In areas of actual armed conflict, killing can be lawful because of battlefield requirements. Outside that context, an extrajudicial killing is legal only as a last resort, and only in response to a truly imminent threat. This makes sense: If a threat is imminent, there is no time for judicial review. In every other context, the Constitution requires the government to prove its case to a court before it kills. After all, allegations aren't evidence - the difference between the two is due process.

The program's defenders, however, argue that the president must be able to take lethal action against targets "who pose a continuing and imminent threat" and who are too risky to capture, as the president explained last May. But if, as reported, the Justice Department has the time to build a case against a suspected terrorist for months, then the threat he presents is not imminent. And if the threat is not imminent, then the administration's arguments for killing, and against external judicial review, fall away.

The Obama administration has apparently "solved" this logical inconsistency by redefining imminence to mean its opposite. Under the concept of "continuing imminence," the White House says it can order the killing of an American it suspects may someday strike - even without evidence of an actual plot.

The killing program isn't only unlawful, it's unwise.

When Americans hear of a drone strike, many think of a terrorist threat neutralized. But human-rights investigators and reporters have documented numerous horrific casualties of people killed due to mistaken identity or being at the wrong place at the wrong time.

Deaths like these have made the killing program toxic throughout most of the world and have turned potential allies into enemies. The blowback is so severe that retired Army Gen. Stanley McChrystal, who commanded U.S. and coalition forces in Afghanistan, has repeatedly called for restraint. "[T]here is a perception of helpless people in an area being shot at like thunderbolts from the sky by an entity that is acting as though they have omniscience and omnipotence," McChrystal said recently.

Perception isn't the only problem. We would do well to remember the 67-year-old grandmother killed by a drone while picking vegetables in her garden in Pakistan. Or the 16-year-old American boy blown up while eating dinner outdoors in Yemen. Or the 10-year-old Yemeni child who died in a CIA strike - only a few weeks after the president announced that drone missiles would not be fired unless there was a "near certainty" that no civilians would be killed.

There are some powers people should never concede to their government. That's why the Founders included due process in our Bill of Rights. Extraordinary powers consolidated in one office inevitably will be abused. That's true no matter who's behind the desk.

By asserting the right to kill based on his authority alone, President Obama violates the constitutional principles he swore to uphold and undermines the security we all seek. He also paves the way for a President Christie, Clinton, or Cruz to decide who lives and who dies.

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Anonymous

How can that question, the way it was phrased (and probably purposely so) create a debate?
In a debate there have to be TWO sides and someone has to talk for the other side, but I don't see how there can be two sides to the question "Does the president have authority to target and kill Americans?"
The answer should always be NO and I can't think of a time when it would be YES.
But I'm only a freakin' relative of a 9/11 Victim who would turn in his grave, if he had a body in his coffin TO turn (which he never did) upon hearing of that practice and probably being justified in the names of the people who were killed. IOW HIS name.
He was the most peaceful person I ever met and to this day, I still wonder why HE died but people like Ted Nugent who CLEARLY have no gratitude or love for life get to be blessed with a really long existence. However horrible that sounds, the question of why that is always popping into my mind at the most inopportune times.
I'm certain Eric never would have approved of targeted killing in his name. He didn't even like wars that to me seemed unavoidable and one of his favorite books was called 'Wielding a Red Sword,' by Piers Anthony. A book that from beginning to end discusses whether war is really necessary and how to go about handling it.
I read the book after Eric was gone. He gave me all his books, even the ones about the Civil War.

Anonymous

BTW...that's what they gave Eric and all those other people they killed just b/c Osama bin Laden was angry that people in our GOVERNment "wouldn't stay out of the Holy Lands."

Eric didn't get a damn trial at all and he was killed for what someone ELSE may or may NOT have believed, but he certainly DIDN'T think that way.

I think EVERYone's going around thinking they can kill people for no reason, NOT just our side, but I don't hear anything forthcoming about it when THEY do it. I don't hear any outrage from ANY Americans when they do it.
And why should I? If you didn't know someone who died that day it's just another traumatic event in the COUNTRY'S history but not your OWN life. Something that mattered then but holds no real sway in your life now.
I don't get upset about the Oklahoma bombing the same as I do this, b/c it doesn't feel as immediate and nowhere NEAR as personal. I dislike that about myself but that's the way it is, and I don't know how to change it (I've tried to no avail.)
I started figuring it must be a normal reaction to something when you're NOT as personally involved in it.
OTOH I would have expected people to be upset with what happened in an intellectual way and that if they were going to be outraged at Americans doing it would at least say they're offended when ANYone does it.
If that makes sense. I'm not completely sure it does, and the week didn't start off the way I hoped it would.

Anonymous

All the "people" who thinks they DON'T

Vicki B.

All the people who thinks ACLU DOESN'T say as much against Obama as they do Bush can get bent.

I VOTED for Bush and think Bush is worse than Obama, even with THIS knowledge I still think he was worse b/c his actions utterly RUINED any possibility that my family would EVER see any "justice" in the case of watching our loved one die on September 11.
The fact that all the deFENDants were tortured has made getting a conviction plus time served next to impossible and the Bush Administration COULDN'T have been STUpid. They HAD to have known that was a possibility.

At least President Obama FOUND Osama bin Laden. I no longer think Bush even wanted to, b/c it would have taken away his main reason for saying he needed to go to Iraq: b/c of terrorists, mass weapons and whatever ELSE excuse he could apply to it.

Our family didn't need one MORE disappointment in the long list of ones we've had since this shit happened, but some people saw fit to give it to us anyway and for that I think I'll always hate them.

Anonymous

Thanks--very important topic. I'm wondering...what happened to separation of powers? Maybe the judicial branch needs to stop giving so much deference to the executive branch and its own court-made doctrines of such deference.

family member o...

I'm wondering why my former husband, daughter's current dad, was "killed far from any battlefield" when he WASN'T a suspicious person.
What the hell was he suspected of? Going the hell to WORK?
Why that's just the most terrible thing *I* ever HEARD of.

I hate the people who think there's only ONE side to this story, b/c there's more than one side and Eric was on one of those sides, and they burned up every inch of his body so effectively that no evidence of his physical existence at World Trade Center 1 has ever been found.
A friend of mine was burned over 60% of his body surface and all 69 of his colleagues were killed, including an entire family: two of the workers were married to each other and one was pregnant with their first child.
"It was supposed to be a HAPPY time for them," according to Robb (my friend), "not a 'fight for your life and lose it' time."
Their names were John Resta and Sylvia San Pio Resta (and her unborn child.)

There's obviously more than one side to this story and if everyone chooses to forget that, I'll have no problem reminding them of what we're still missing in our lives.

I'm not justifying drone killings either. I justify NO killings but I still think people appear to need a reminder of what it was like for us so I'm going to explain one part of by sharing in the only way I know how, through my poetry.
The poem explains what it was like when it first happened, and what it can STILL be like on certain days:

Why?

Why have I lost you I ask again, and again I receive no reply
you think I'd know by now my friend not to search for an answer why,
but I find myself in that searching mode on a constant quest for the ultimate relief
to learn why you died in this horrible way and decrease the effects of my grief
A death is horrible when it comes in any form
but feels worse when it happens by violence
'cause survivors live with the usual grief pains
but walk with a forced vow of silence
to hide away the ache of the loss in their hearts
to protect those who can't bear to hear of it.
Why have I lost you I wonder again, and again I receive no reply
you think I'd know by now my friend not to seek out an answer why
but again I am drawn to that questing mode on a constant search for the ultimate relief
to learn why you died in this horrible way and decrease the effects of my grief
to learn why you died in this horrible way and unburden myself of my grief.

I think MORE than JUST President Obama is at fault in this thing. It's just too bad all the RADICAL Republican reporters at the gd Philadelphia Inquirer want to paint only ONE person to be responsible.
But how typical. It fits right in with the long history Philadelphia can boast of when it comes to bigots and haters.
Eric was FROM Philadelphia and loved the city so dam much he wrote a song dedicated to the city. I NEVer liked Philadelphia as much as HE did, but even he knew about bigots and haters in Philly, where the sun never sets (It's always sunny in Philadelphia.)

Anonymous Cali ...

The anguish being shared reminds me of what I read daily about officer-involved shootings that are actually executions like that of 17 year-old boy from Vallejo, CA on 6/30/12 by local police. Late in the 5 min. hunt for him, neighbors record police reaching over a block wall after finding him lying in a fetal position crying, "No no no don't shoot" before he is obliterrated by a barrage of dozens of bullets from multiple weapons by 2 police including a machine gun YouTube video. Even those we pay to serve us have carte blanche to "clean up our streets" by "taking out the trash" as they deem necessary - sans due process. Extra-judicial killings are an ever-increasing problem on the home front, too. The poem above also speaks to those who have suffered this form of violence. Thank you for sharing such powerful and memorable work. Thank you to the ACLU Angels for you are comprise our "last stand" against this tyrannical wave (sunami?) of oppression we face. All we really have is our freedom, yet we seem forced to give up more and more every single day. We need a reset button - I think I'd prefer no security at all compared to this crash course we're on.

Anonymous

I am very sorry for the loss of your husband, and close friends. The bombing of the twin towers was a terrible time in American history, and hopefully it will never be repeated. I agree that security measures must be taken by the United States government to make sure citizens are safe and secure and that a threat or even possible threat like 9/11 will ever happen again. With this in mind I urge you to think about what it means for people around the world the world to go about their daily lives and then a drone, that is meant to kill a terrorist ends up killing a child. The same way 9/11 hurt many people, drone killings have the same capability of hurting people. I believe that the argument this article is trying to make is that American Citizens no longer have the right to be tried, there is no process before the drone strikes actually occur. The United States governments is over stepping its capabilities when it decides, without the consent of the courts that it can kill people. And not just any people, American people who are suspected, but may not have done anything. Isn't that why we have a court system and "innocent before proven guilty?"

Anonymous

I am very sorry for the loss of your husband, and close friends. The bombing of the twin towers was a terrible time in American history, and hopefully it will never be repeated. I agree that security measures must be taken by the United States government to make sure citizens are safe and secure and that a threat or even possible threat like 9/11 will ever happen again. With this in mind I urge you to think about what it means for people around the world to go about their daily lives and then a drone, that is meant to kill a terrorist ends up killing a child. The same way 9/11 hurt many people, drone killings have the same capability of hurting people. I believe that the argument this article is trying to make is that American Citizens no longer have the right to be tried, there is no process before the drone strikes actually occur. The United States governments is over stepping its capabilities when it decides, without the consent of the courts that it can kill people. And not just any people, American people who are suspected, but may not have done anything. Isn't that why we have a court system and "innocent before proven guilty?"

Anonymous

APPEAL OF THIS DECISION SHOULD BE FILED ON THE GROUNDS THAT THIS JUDGE STATED, INSINUATED, IMPLIED THAT THE United States was at WAR! If there was never any OFFICIAL DECLARATION OF WAR then her ruling should be appealed and challenged.

DECLARATION OF WAR

DEFINITION:

A declaration of war is a formal act by which one nation goes to war against another. The declaration is a performative speech act (or the signing of a document) by an authorized party of a national government in order to create a state of war between two or more states.

The legality of who is competent to declare war varies between nations and forms of government. In many nations, power is given to the head of state or sovereign; in other cases, something short of a full declaration of war, such as a letter of marque or a covert operation, may authorise war-like acts by privateers or mercenaries. The official international protocol for declaring war was defined in the Hague Convention (III) of 1907 on the Opening of Hostilities.

Types of declarations
An alternative typology based upon the form of the declaration is formulated by Brien Hallett [6] according to 1) the degree to which the state and condition of war exists, 2) the degree of justification, 3) the degree of ceremony of the speech act, and 4) the degree of perfection of the speech act:
Degree of existence of the war
• A conditional declaration of war declares war conditionally, threatening war if the grievances listed are not acknowledged and the preferred remedies demanded are not accepted.
• An absolute declaration of war declares war absolutely due to the failure of negotiations over the grievances and remedies found in the conditional declaration. It ends absolutely the state and condition of peace, replacing it with the state and condition of war until such time as peace is restored.
Degree of justification of the war
• A reasoned declaration of war justifies the resort to war by stating the grievances that have made peace intolerable and the remedies that will restore peace.
• An unreasoned declaration of war does not justify the resort to war, or does so only minimally.
Degree of ceremony with which the speech act was made
• A formal or solemn declaration of war is a declaration made by the constitutionally recognized nation following the appropriate laws, rites and rituals.
• An informal or unsolemn declaration of war is a declaration made in an irregular manner either by a constitutionally unrecognized nation or by the constitutionally recognized nation using unlawful, inappropriate procedures.
Degree of perfection with which the speech act was made
• A perfect declaration of war is a formal, solemn speech act made in accordance with the proper laws, rites, and rituals.
• An imperfect declaration of war is an informal, unsolemn speech act not made in accordance with the proper laws, rites and rituals.

DECLARATION OF WAR?
A public and formal proclamation by a nation, through its executive or legislative department, that a state of war exists
between itself and another nation, and forbidding all persons to aid or assist the enemy.

Law Dictionary: What is DECLARATION OF WAR? definition of DECLARATION OF WAR (Black's Law Dictionary)
WHO OR WHAT GOVERNMENTAL AGENCY CAN DECLARE WAR?

Only the Legislative branch may declare war. Article I, Section 8 states Congress shall have the power: To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. However the executive (presidential) branch can declare military actions and short term engagements, if they are not ratified by the legislative branch than they are not official wars. In Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 (1980), it stated that Our history is replete with instances of presidential uses of military force abroad in the absence of prior congressional approval. This pattern of presidential initiative and congressional acquiescence may be said to reflect the implicit advantage held by the executive over the legislature under our constitutional scheme in situations calling for immediate action. Thus, constitutional practice over two centuries, supported by the nature of the functions exercised and by the few legal benchmarks that exist, evidences the existence of broad constitutional power. Military action by order of the president without declaration of war by the legislative branch has limited power in that it cannot • legally take ownership of land from another country.

Many military actions of the past 50 years have been presidential military orders and not declared wars.

The question should have been raised on what WAR was the United States Fighting at the time, Who declared WAR, What were the grounds of threat to the United States to declare WAR…..and if it was done so only as a MILITARY ACTION then accountability is in play and this should be APPEALED based on this judges contention of THE DECLARATION OF WAR.

It must be proven that the United States was under DIRECT THREAT before WAR CAN BE DECLARED and then the President of the United States does not have the authority to declare war…..IF war was in fact ever declared it must be shown that it was and for what justifiable reason….otherwise the judges remarks are prejudicial and biased to Governments self serving mandates.

APPEAL OF THIS DECISION SHOULD BE FILED ON THE GROUNDS THAT THIS JUDGE STATED, INSINUATED, IMPLIED THAT THE United States was at WAR! If there was never any OFFICIAL DECLARATION OF WAR then her ruling should be appealed and challenged.

SEND TO: Hina Shamsi, director of the ACLU National Security Project
Hina Shamsi @HinaShamsi

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