The Fifth Amendment states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor be deprived of life, liberty, or property, without due process of law.”[1] Yet on September 30 the US Government deliberately killed a US citizen without an indictment, and without any judicial procedure at all.
As Hugh Gusterson writes in Bulletin of the Atomic Scientists[2], “Anwar al-Awlaki was clearly not a nice person, but the manner in which he was killed on September 30 should trouble us all, regardless of our political orientation.”
Somewhere in Washington is a legal memorandum[3] that supposedly provides the justification for killing Anwar al-Awlaki, a US citizen in spite of the constitutional prohibition. But we can’t read the memorandum, it is secret. The constitution was written to prevent precisely this type of action by one branch of government. As Hugh Gusterson phrases it, “Since when does the executive branch, alone, get to decide which American citizens should be put to death? Didn’t the United States fight a revolutionary war to put an end to that kind of autocratic abuse of executive power?”
There may be citizens who present a danger to the people and are beyond the reach of normal law enforcement. And it sounds like Anwar al-Awlaki may have been one of them. But that finding needs to come from an open judicial process and not a secret executive order.
[1] The full text of the amendment reads, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
[2] Hugh Gusterson, Death by drone, Bulletin of the Atomic Scientists, October 13, 2011
[3] Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, New York Times, October 8, 2011