I am bearing witness as we abandon one of our most basic principles. At the confirmation hearings for CIA Director John Brennan earlier this month, several senators broached the idea of creating a special court to approve "targeted killings" of Americans suspected of terrorism. Alas, the proposed tribunal, modeled after the Foreign Intelligence Surveillance Act (FISA) court, is a charade, not a solution — a Band-Aid on our national conscience designed to distract us from the fact that our government is killing its citizens without due process of law.
The impetus for the new court is the increased use of unmanned drone strikes to kill suspected enemy combatants in Afghanistan, Pakistan and Yemen. In September 2011, one of those strikes killed an American citizen and suspected member of Al Qaeda, Anwar al-Awlaki. While al-Awlaki likely deserved his fate — I have only contempt for any American who would take up arms against his country, or plot to murder his fellow Americans — one frightening fact remains: al-Awlaki was executed by executive order, by one branch of government acting as both accuser and executioner based on the threadbare cover that there was "credible evidence" of his guilt. And, given the Justice Department’s defense of the drone strike program, al-Awlaki will not be the last American that our government kills in this manner.
When considering this troubling turn of events, let us begin where our Founding Fathers began, with a notion that was, at the time they enshrined it into our Constitution, quite radical: that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." Prior to 1791, human history was mostly a litany of governments and the powerful doing just that — of killing, imprisoning and robbing people with few, if any, restrictions on their ability to do so. Indeed, even when there was some legal "process" in place, e.g., during the Inquisition, what typically was "due" to defendants was the right to have a confession tortured out of them and then displayed as proof of their guilt.
Our Bill of Rights said goodbye to all that by elevating the law above the sovereign. It is difficult, perhaps, to comprehend now just how ground-breaking a concept it was then to declare that the government must adhere to a set of rules in order to punish one of its citizens — rules that the powers that be may neither change, nor disregard — and that the law must sanction the punishment before the government may act. It was, as was said of the French Revolution, a moment "that dissolved the old world in agony and gave birth to the new."
And now, two centuries and one decade-plus-old War on Terror later, our government is ready to sacrifice this essential component of our national fabric on the altar of expedience. To be sure, it will be simpler to battle terrorism if we can kill suspected terrorists without bothering to try them first. It would be simpler, too, to execute every accused murderer without trying them, or to imprison every accused thief solely because a prosecutor claimed to have "credible evidence" of their guilt. It is always easier to make a desert and call it peace.
Our executive branch seems to have forgotten that inconvenience is the intended price of due process. The Constitution deliberately hamstrings the government’s ability to act effectively if that action would impact our right to "life, liberty, or property." Due process is a crucial bulwark against tyranny, a breakwater placed squarely in the path of encroaching government power. As such, following its dictates often makes the government’s job harder — and it sometimes may even make us less safe. So be it.
Our government killing Americans without legal process is not unprecedented, but the one prior example is hardly one that bears emulating. During the Civil War, President Lincoln’s insistence that secession by the South was a legal nullity meant that, in a technical sense, Confederate soldiers died without due process at the hands of their government (albeit one they no longer recognized as sovereign). Aside from the fact that those soldiers died in the field, face-to-face with an enemy they could see, due process literally was not an option because our courts simply lacked the capacity to act as the arbiters of a national cataclysm.
Now, on the other hand, as the senatorial proposal to create a special court evidences, due process is not unavailable — it is merely impractical. It is terrifying to think, given the prospect of a never-ending conflict with no traditional battlefield, that impracticality might become the new measuring stick for shucking off the constitutional guarantee that your government cannot take your life without due process of law.•