President Donald Trump’s use of the U.S. military to kill persons on speed boats in international waters, or in territorial waters claimed by other sovereign nations – all 1,500 miles from the U.S. – has posed grave issues of due process. The Constitution’s guarantee of due process requires it for every person, not just Americans. The operative language of the Fifth Amendment is that “No person… shall be deprived of life, liberty, or property without due process of law.”
The Trump administration has claimed that it can kill whomever it designates as an unlawful enemy combatant – it prefers the political phrase “narco-terrorist” – and the due process it provides is the intelligence gathered by American spies and the White House analysis of that intelligence. This secret analysis, the government’s argument goes, satisfies the president that the folks he has ordered killed are engaging in serious and harmful criminal behavior, and somehow is a lawful and constitutional substitute for the jury trial and its attendant procedural protections that the Constitution commands.
To be fair, I am offering an educated guess as to the administration’s argument. The reason we don’t know the argument precisely is that the Department of Justice calls it classified. This is, of course, a non sequitur. How could a legal argument possibly be secret in light of well-settled First Amendment jurisprudence? It can’t. The Supreme Court has ruled consistently that there are no secret laws or secret rationales for employing the laws. Moreover, it has ruled that the First Amendment assures a public window on government behavior whenever it seeks to take life, liberty or property.
The last time we went through efforts to obtain the government’s legal argument for presidential targeted killing was during the Obama administration. When President Barack Obama ordered the CIA to kill Anwar al-Awlaki and his son – both natural born American citizens – it, too, claimed a secret legal rationale. Yet some brave soul who had access to that rationale leaked it to the press. The rationale likened killing al-Awlaki and his 16-year-old son to police shooting at fleeing bank robbers who are shooting at the police.
The Obama justification was absurd, as al-Awlaki was not engaged in any violent acts. He had been followed by 12 intelligence agents during his final 48 hours of life. Those agents couldn’t legally arrest him, because he hadn’t been charged with a crime, but in the Obama logic, they could legally kill him.
When those of us who monitor the government’s infidelity to the Constitution publicly pointed out the flaws in the Obama argument, it reverted to the argument that I suspect the current administration is secretly using. Namely, that its secret internal deliberations are a constitutionally adequate substitution for traditional due process.
It gets worse.
Hellbound and Down 