Debate forum, 2/12

Debate Forum Center

Whatever happened to due process?

 By Alex Culpepper

According to the U.S. Justice Department, the U.S. Government has the authority to target and kill American citizens, usually by drone strike, who it believes are allied with al-Qaida and pose an imminent threat to engage in violent attack against this country. At least that is what the Justice Department stands by in a memo, or “white paper” as some call it, which has managed to slip into the hands of some journalists. This memo provides the framework justifying such drastic action in the name of defense. The memo further claims that it is lawful to kill someone despite the lack of hard evidence of a crime. In essence, one can be targeted and “taken out” without the due process guaranteed in the U.S. Constitution.

If you are suspected of a crime in the United States, the U.S. Constitution guarantees that you receive due process before bad things can happen to you. In short, that means that you must get arrested, have evidence of wrongdoing presented and then have a court determine your guilt. This process was designed to ensure that if you did something wrong, or planned to do something wrong, it had to first be proven. There are people at odds with the Obama administration’s decision to allow drone strikes to kill suspected terrorists, some of whom happen to be American citizens, because they interpret this “white paper” as proof that the Justice Department of the executive branch is deliberately bypassing constitutionally mandated due process.

Other problems are peripherally connected to the violation of due process. The Justice Department memo contains words such as “imminent,” “recently” and “activities” to describe suspected terrorists, and to critics those words are not clearly defined, suggesting a broad interpretation by the Justice Department of the definition of terrorism. Consequently, the limits and boundaries of its authority to undertake these actions are deemed vague and undefined.

The Obama administration defends its actions and traces its authority to the joint congressional Authorization for Use of Military Force (AUMF) resolution of 2001 that allows for targeting suspected terrorists (al-Qaida) even if they are not on a battlefield, and it allows for the killings without input from the judicial branch – a kneejerk reaction enacted only three days after the attacks on September 11 during the George W. Bush administration. According to the Obama administration, the AUMF also applies to American citizens. To further echo the administration’s stance, the Justice Department memo reveals confidence with such action regardless of whether or not someone has committed a crime or even plans to do so: “First, the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Reports about this development seem like a he said/she said scenario because people who cherish due process claim that this is illegal and dangerous. The U.S. Justice Department and the Obama administration claim to have the law on their side as well. Either way, Congress may need to take a larger role, and President Obama has directed the Justice Department to hand over to Congress a rationale for the drone strikes. Also, we may soon get to read more memos, as the ACLU is suing to have the administration release them.

Debate Forum Question of the Week:

If indeed the Obama administration’s justice department can target and kill American citizens who they believe pose an “imminent” threat of attack
against the United States by validating their actions via the Bush administration’s AUMF resolution of 2001, does such action in the name of
defense equate to a violation of the Constitutional due process rights of those very U.S. citizens? 

Debate Forum Left: Frosted mini rights

By Ben Tomkins

God, this one makes me feel like I’m auditioning for a Frosted Mini-wheats commercial from the early ‘90s, except instead of the worst cereal ever conceived, it’s the Constitution.  OK …

“The adult in me respects due process because that right is healthy for our country no matter what the circumstances.”

[Cut to me as some stupid kid in big clothes with milk crust on his upper lip]

“But the kid inside me doesn’t really care because I’ve got bills to pay and they’re trying to murder me.”

I understand that al-Awlaqi is a U.S. citizens and all, but it’s really tough to be Captain America some days when I’m really tired and I’d give anything to be able to go back to sleep and just not care if the theocratic, homicidal maniac up whose ass we are currently shoving a Predator drone still has his passport revocation paperwork lying unstamped on a bureaucrat’s desk in Hot Springs, Ark.

As a matter of fact, it’s almost funny when I look back on the day the news broke that we killed Anwar al-Awlaqi, and half the country lit up about our government infringing on everyone’s rights because it threatened the sanctity of the Fourth and Fifth Amendments. So I get on CNN and I see they’ve killed this guy, and I say half bemusedly to myself and half to my wife who’s sitting across from me eating cereal:

Me:  Ha! Check it out. They finally killed that asshole al-Awlaqi.

Wife:  I know. It’s really bad and a lot of people are pissed.

Me:  Um … why?

Wife:  (with an edge of ominously mounting disapproval in her voice) Because he’s an American citizen, and our government is violating his due process, that’s why.

Now I’m faced with a choice. I know this is going somewhere I’m not ready to go on my only morning off in the last month.  I can either: A) stand up for my opinion and engage my wife in a friendly marital conversation about the merits of killing other people knowing full well that she has already spent 350 bucks Tupperwaring our entire kitchen rather than putting out a freaking mouse trap, or B)

Me:  Totally. Listen, what kind of omelet do you want?

You see, “the husband in me knows that it’s really important to respect her argument because it’s actually valid.”

[Cut to me as some stupid adult sleeping on the couch with gin crust on my flannel PJs]

“Despite the fact that the man inside me would rather stick to my guns and go all Wyatt Earp on these people.”

And really, that’s what’s so hard about the question posed in this week’s forum center. There’s such a wide gulf between the notion that the government can kill a crazy freak with an inconvenient birth certificate in a foreign country, and the proposition that the “white paper” argument could be construed to apply in our own country.

Now I gave this a lot of thought – a lot of thought – and of the three points it makes, the only one that gave me pause on a domestic level was number two. It says that in order to invoke this power, capture would have to be functionally impossible.

Number two is the lynchpin of the entire argument that the government can kill someone without saying “freeze” first.  People want to act like it’s about shooting someone without judicial oversight, but really, doesn’t that happen all the time?

Consider the situation with the Alabama kidnapper.  After Wayne LaPierre finished kissing my fanny, I realized that the situation met all three criteria in the “white paper” for a non-reviewable, lethal strike. We shot him, and an individual in charge made that call based on the inherent danger. Capture was functionally impossible given the risk posed to the lives of the FBI agents who were storming the bunker.  Finally, it was done “by the book.”

That’s when I figured out the difference. In Alabama, we spent about four days trying to talk this guy down before we shot him. The authorities sent food and toys down for the kid, they appealed to the kidnaper’s sense of decency and humanity, and all of that ultimately came to naught and they killed him. But he could have come out, and had he done so, they would have arrested him.

At its most basic level, due process is not just about the right to a trial, it’s about being given the opportunity to get that trial before we shoot you. That is the singular, substantive problem with a drone strike: you aren’t given the chance to acknowledge that the jig is up and you may as well come out with your hands up. You simply evaporate into a pinkish mist and inconvenience whoever owns the property on which you were sitting about a half second ago.

As an American citizen, regardless of your current situation, you have to be given that right. If we allow that to be infringed in any way – even for a terrorist – we are opening the door to a “shoot first and ask questions later” style of law enforcement that, while highly entertaining to the kid in us, doesn’t work so well for the adult in us that has to sleep in the same bed as the rest of our fellow citizens.

Benjamin Tompkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tompkins at

Debate Forum Right: Killing them softly with his drones

By Dave Landon

Last week, a confidential Justice Department memo was leaked to the NBC news organization that concluded that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force.” The memo concludes that there is legal justification for such an attack even if there is no intelligence indicating they are engaged in an active plot to attack the U.S. The participation by any individual, including an American citizen, at a high level in the al-Qaida terrorist movement gives sufficient grounds for the U.S. government, according to the White House “white paper” to target and kill that individual.

There is an irony present in this Obama administration policy that can’t be allowed to pass without comment. Actually, the word irony does not adequately describe the situation at hand; the term hypocrisy better describes Barack Obama’s newfound belief in the use of preemptive strikes by the U.S. military. As a U.S. Senator and as a presidential candidate, Barack Obama was critical of the Bush administration for using “enhanced interrogation” methods, military tribunals and designating captured al-Qaida as “unlawful combatants” who the Bush administration argued were not entitled to the full slate of constitutional rights and due process. The level of Obama’s criticism set him apart from Hillary Clinton and helped him win the Democrat party’s nomination and the presidency in 2008. Now as president, he authorizes the targeting and killing of America’s enemies, including U.S. citizens aiding al-Qaida, by hellfire missiles fired by silent and invisible drones. Unless there’s a Miranda warning taped to the front of the missiles, the president has forgone all pretenses that these enemies are entitled to due process. It’s a rather remarkable turn-around in philosophy.

That’s not to say that I believe the administration’s current policy is wrong. This is a different kind of war in which we are engaged. The enemy isn’t another nation. The enemy doesn’t wear a uniform so that they may be easily distinguished. The enemy isn’t gathered neatly along a front or battle line where we can concentrate our forces and firepower. Yet, they are just as determined to kill Americans. This is an asymmetrical battlefield where those who wish to destroy our way of life are largely indistinguishable from the rest of world. Our enemies have access to methods of destruction which make them just as dangerous as a traditional army set on dominance and destruction. To protect Americans, the president has every right to seek out and destroy al-Qaida operatives who pose a major threat.

Anyone who has joined the ranks of al-Qaida must be made to understand that the United States will not be tied to the protections afforded by the Constitution when it comes to enemy combatants. That applies to all unlawful combatants, even to American citizens who have taken up arms against this country.

The memorandum includes description of limitations to the power of the president to order these attacks. The process of determining a target must include the determination that the target is a “senior operational leader” and that capture could not be easily undertaken. When officials conclude that “capture is infeasible,” the leaked memo states, “the intrusion of any Fourth Amendment interests would be outweighed by … the interest in protecting the lives of Americans.”

That sounds reasonable to me. If the enemy is hiding in remote corners of the world from where they launch their jihad, and the local government is either incapable or reluctant to undertake the capture of these terrorists, the use of a drone to light up a bad guy who is a senior member of al-Qaida seems to me to be a measured response.

The memorandum has been leaked during a time of dramatically increased use of drone strikes against al-Qaida suspects abroad. The strikes include those aimed at American citizens who have joined the jihad against western governments and institutions. The September 2011 strike in Yemen that killed alleged al-Qaida operative Anwar al-Awlaki is such an example. Al-Awlaki was a U.S. citizen who had never been indicted by the U.S. government nor charged with any crime.

Anwar al-Awlaki was a U.S.-born Islamic militant cleric who became a prominent figure with al-Qaida in the Arabian Peninsula. Fluent in English, he presented a danger to the west from his persuasive Internet preaching where he sought to inspire attacks on Americans and the West. His sermons got results. Al-Awlaki counseled Umar Farouk Abdulmutallab, the 23-year-old would-be Christmas plane bomber, just weeks before the failed bombing. Al-Awlaki also exchanged up to 20 emails with U.S. Maj. Nidal Malik Hasan, alleged killer of 13 people in the Nov. 5, 2009 rampage at Fort Hood. All indications are that Hasan was inspired by al-Awlaki’s Internet sermons in planning his attack at Ft. Hood.

So here was a senior member of al-Qaida who played a direct role as instigator in the deaths of Americans at Ft. Hood and a nearly successful destruction of an airliner over Detroit. While al-Awlaki was a U.S. citizen, he deserved no more due process than an American who joined the Third Reich and was killed by a U.S. bomb during World War II. While there are limits to the president’s ability to target enemy combatants, overall the policy is sound, as it will protect American lives.

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at

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