A Loophole in the US Constitution Allows the Government to Kill Americans Without Going to Court

By Sheree McManus

In recent years, during government drone strikes, U.S. citizens have been the targets of such attacks. U.S. citizens have been targeted because of established intelligence data that has associated them with terrorists groups, such as al-Qaeda or ISIS. In an effort to strategically reduce the ability of these terrorists groups from operating effectively, US citizens, and their terrorist counterparts have been targeted.

However, it must be noted that not all Americans killed by U.S. drone attacks have been the subject of targeted attacks, as in the case of Dr. Warren Weinstein, a US government aid worker and Giovanni Lo Porto, an Italian aid worker. According to the media, the drone strike that killed Dr. Weinstein and Mr. Lo Porto were authorized by a senior counter-terrorism official without any specific information about who was in the immediate vicinity.

Al Qaeda Hostages Weinstein, Lo Porto Killed in Drone Strike

There are those who claim that Americans have been the target of drone strikes for several years and proceed to give the names of some U.S. citizens that have been killed by U.S. drone strikes: Kernal Darwish (killed in a military operation strike in Yemen), cleric Anwar al-Awlaki, and Samir Khan along with two other U.S. citizens (killed by CIA drone strikes), and Awlaki’s 16-year-ol son, Abdulrahman-al-Awalki, who was also a U.S. citizen.

Anwar al-Awlaki was an American and Yemeni Imam and Islamic militant.
Abdul Rahman al-Awlaki — Son of Anwar al-Awlaki

With the exception of Awlaki’s son, each one of them had ties with a terrorist organization (i.e., al-Qaeda and Taliban). It appears that even though they were U.S. citizens — none were afforded procedural due process.

They were not given any kind of notice, representation, nor procedural due process (i.e., some type of Hearing on the issue of their innocence or guilt) as mandated by the Constitution. The current procedure does not allow for any such notice. Suppose they were innocent? Suppose the intelligence data was faulty? Suppose it was a case of mistaken identity? The Fifth Amendment of the Constitution was established as a judicial safeguard, in order to protect against interference, with such liberties.

When the government targets US citizens, it engages in a more thorough review, because of constitutional issues. As stated earlier, US citizens killed under the drone strikes have neither had an opportunity to be heard, nor have been notified before being deprived of life, as mandated in the U.S. Constitution. It states in part that “nor shall any person…be deprived of life, liberty, or property, without due process of law.”

Under discussion have been the issue(s) that there is currently no court to hear such actions and that a drone court should be established. On the other hand, there are those who contend that the current “status quo” system is constitutionally compliant and no drone court is needed.

The proposed drone court would consist of federal judges, who will weigh evidence presented and perform the difficult tasks of determining whether sufficient evidence exist, before targeting a US Citizen. However, will the establishment of a drone court really protect U.S. citizens from drone attacks? Does the protection of a few outweigh the protection of a nation when it comes to National Security?

There may be a general consensus that because of the Constitution — the rights of the citizen prevail. But, when it comes to a U.S. citizen plotting a terrorist attack against their own country — there may be an argument that they are outside the purview of protection that is mandated by the Constitution. In short, some will conclude that right to due process should still be afforded, and others will assert that going against the national security of the U.S. removes you from the protection of the U.S.

What are your thoughts?

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