Death Without Due Process
" 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."
That would mean that anyone killed in war should have got a trial. I think the reason why killing someone in war is legal is because their is some kind of legislative act saying so. A declaration of war is a good example. People in power just can't go around and kill, steal, etc, etc without some kind of written rule or law to do so. It kind of prevents them from ignoring the legislative body of the government. That is the body that makes the rules.
This is about the people deciding whether or not a president's actions are appropriate through the political process, not judicial; as the courts have no role or authority to make such a determination consistent with political question doctrine:
“[T]he Supreme Court has held that federal courts should not hear cases which deal directly with issues that Constitution makes the sole responsibility of the other branches of government. Baker v Carr, 369 U.S. 186 (1962). Therefore, the Court has held that the conduct of foreign relations is the sole responsibility of the executive branch, and cases challenging the way the executive is using that power present political questions. Oetjen v. Central Leather Co., 246 U.S. 297 (1918).”
Political Question Doctrine
Clearly. addressing the threat posed by terrorists abroad manifests as “conduct of foreign relations [which] is the sole responsibility of the executive branch,” where due process does not come into play, and where a president is not acting in the capacity of judge, jury, or executioner.
The people are at liberty to oppose a president's actions in this regard pursuant to their First Amendment rights, to campaign against a sitting president during a General Election, and to vote against a president because of his foreign policy positions; but due process is not at issue, due process does not apply outside of the jurisdiction of the United States, and this is not an issue that concerns the courts.
If you are willing to have GWB make the decision to take you out while you are in a cafe eating lunch, just because the flawless CIA told him to kill you because of something a captive told them while being waterboarded then OK stand by what you say.
But case law and history tells us that US jurisdiction does not end at the boarder.
SUBSTANTIVE DUE PROCESS AND U.S. JURISDICTION OVER FOREIGN NATIONALS
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FORDHAM LAW REVIEW
[Vol. 82
A series of Supreme Court cases in the 1950s cast considerable doubt on
that proposition, although the Court did not expressly overrule the line of
cases supporting it.65
In
Reid v. Covert,66 the Court reversed its own
opinions from the previous term67 and overturned the convictions of two
civilian wives of military officers who were tried by military tribunals
overseas for their husbands’ murders. Justice Black wrote for himself and
three others:
At the beginning we reject the idea that when the United States acts
against citizens abroad it can do so free of the Bill of Rights. The United
States is entirely a creature of the Constitution. Its power and authority
have no other source. It can only act in accordance with all the limitations
imposed by the Constitution. When the Government reaches out to
punish a citizen who is abroad, the shield which the Bill of Rights and
other parts of the Constitution provide to protect his life and liberty
should not be stripped away just because he happens to be in another
land.68
The opinion established that civilians could not be tried for capital crimes
without the full panoply of due process standards guaranteed by the Bill of
Rights, at least outside of areas of ongoing military operations or
occupation.69 The holding was soon expanded to cover noncapital cases
and crimes involving civilian employees of the armed services.70
Due
65. In
Reid v. Covert, Justice Black, writing for a plurality, considered
Ross to be “one
of those cases that cannot be understood except in its peculiar setting; even then, it seems
highly unlikely that a similar result would be reached today.” Reid v. Covert, 354 U.S. 1, 10
(1957) (Black, J.) (plurality opinion). He distinguished
Madsen on the basis that it
“concerned trials in enemy territory which had been conquered and held by force of arms
and which was being governed at the time by our military forces. In such areas, the Army
commander can establish military or civilian commissions as an arm of the occupation to try
everyone in the occupied area, whether they are connected with the Army or not.”
Id. at 35
n.63. Justice Black also suggested that “neither the [
Insular Cases] nor their reasoning
should be given any further expansion.”
Id. at 14.
66. 354 U.S. 1.
67
. Id. at 5 (withdrawing opinions in Kinsella v. Krueger, 351 U.S. 470 (1956), and Reid
v. Covert, 351 U.S. 487 (1956)). Justices Frankfurter and Harlan concurred in the result.
Justice Harlan described the reasoning in those two cases as holding that the government’s
choice of court-martial to try the women satisfied due process because it was “reasonable” in
light of their connection with the military.
Id. at 66 (Harlan, J., concurring).
68
. Id. at 5–6 (Black, J.) (plurality opinion).
69
. Id. at 35 n.63 (distinguishing
Madsen based on the circumstances of military
occupation).
Reid invalidated Article 2(a)(11) of the Uniform Code of Military Justice
(UCMJ), codified at 10 U.S.C. §§ 801–946 (2012), which brought under the purview of
military jurisdiction civilians accompanying the armed forces outside of the United States or
its territories subject to treaty with the host country. Article 2(10) of the UCMJ covers
“persons serving with or accompanying” the armed forces in the field “in time of declared
war or a contingency operation.” 10 U.S.C. § 802(a)(10). This provision remains good law,
although the reasoning in
Reid may call it into question, at least with respect to citizens.
See
United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012) (finding that an alien contractor working
for the U.S. government was not entitled to avoid a military trial under the Fifth
Amendment),
cert. denied, 133 S. Ct. 2338 (2013).
70. McElroy v. United States
ex rel. Guagliardo, 361 U.S. 281 (1960) (extending
Reid to
prohibit court martial of a civilian employee of the Army for a noncapital offense); Grisham
v. Hagan, 361 U.S. 278 (1960) (extending
Reid to prohibit court martial of a civilian
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process rights under the Fifth Amendment clearly now seem applicable to
U.S. citizens abroad.71
