Genesee Valley Chapter — Death Without Due Process

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on September 8, 2010. In federal district court we have a potential death penalty case playing out. Allegedly three aliens from Jamaica entered the country illegally and executed three persons in a drug dispute. The court has appointed experienced counsel to represent the Jamaicans. The prosecutor will present evidence to a jury, who can convict the defendants only if it finds them guilty beyond a reasonable doubt. Then the judge or jury, not the prosecutor, sets the penalty. Such are the requirements of due process in our judicial system. Contrast the Jamaicans’ trial with the situation of Anwar Al-Aulaqi. He is a U.S. citizen hiding in Yemen. Our government believes that he is a terrorist. Unable or unwilling to capture him and try him, it placed him on a “kill list.” The CIA and the military have the blanket authority to use lethal force against him anytime, anywhere. According to one media report, there have been as many as a dozen unsuccessful attempts on Al-Aulaqi’s life. To quote one official, “he’s in everybody sights.” How did Al-Aulaqi get on the kill list? We do not know. President Bush or President Obama made the determination based on secret evidence and a secret process. We do know that the president performed the functions of prosecutor, jury, and judge, and that the president wants to be the executioner of Al-Aulaqi. We do not know how many persons are on the kill list and how many are U.S. citizens. A person may stay on the list for months and years. There is no administrative appeal of the death sentence. The president asserts that his determination is not subject to judicial review. The ACLU disputes the president’s power to kill Al-Aulaqi and others like him — civilians who are suspected but not proven to be guilty of crimes against the state and who reside outside a battle zone, such as Iraq and Afghanistan. Last week the ACLU took the president to court, claiming that the targeting of Al-Aulaqi violates his Fourth Amendment right against unreasonable seizures and his Fifth Amendment right to substantive and procedural due process, Al-Aulaqi v. Obama, no.10-cv-1469 (U.S. District Court, District of Columbia). The ACLU’s legal theory is strong. It has the right client in a suspected terrorist who happens to be a citizen. It is “well-settled that the Bill of Rights has extraterritorial application to the conduct abroad of federal agents directed against U.S. citizens,” In re Terrorist Bombings of U.S. Embassies in E. Af, 552 F.3d 157, 167 (2nd Cir. 2008). Under the Fourth Amendment “apprehension by the use of deadly force is a seizure,” Tennessee v. Garner, 471 U.S. 1, 7 (1985). The U.S. Supreme Court has not adopted a bright line test on the reasonableness of such seizures. Instead, courts are to consider the “totality of the circumstances.” From decisions involving police there has emerged a standard on the constitutionality of the use of lethal force. Such force can be used only if at the time of its application the citizen poses an imminent threat of death or serious physical injury and there are no nonlethal means that can reasonably be used to neutralize the threat. The standing order to kill Al-Aulaqi deviates from this standard, in particular the imminence requirement. The decision to use lethal force must be based on the circumstances at the time the force is applied, not the circumstances of months ago. Within the Fifth Amendment lies a fundamental right to life, perhaps the most fundamental of rights protected by the Bill of Rights. The government cannot deprive a person of life unless it follows a process that passes strict scrutiny. The courts have held that, outside the context of an armed conflict, a judicial trial is a necessary part of any process resulting in the loss of life. A trial can be dispensed with only if, again, the citizen poses a concrete, specific, and imminent threat to life or physical safety. Finally, the government’s refusal to disclose the criteria by which it places citizens on a kill list violates procedural due process. It is “the first essential of due process of law” that the government must provide notice of what it forbids. This command is especially critical when the government seeks to impose the greatest penalty — death. Now Al-Aulaqi may be a bad guy. At stake in the lawsuit is not his guilt or innocence or whether he in fact poses a threat to life or public safety. Instead, the ACLU seeks to vindicate the rule of law. If we allow the president, Republican or Democratic, to violate the constitutional rights of some citizens, then all citizens’ rights are at risk.