The Fifth Amendment Lies in Crumbles
by Jacob G. Hornberger
The Fifth Amendment to the U.S. Constitution reads in part as follows:
Nor shall any person … be deprived of life, liberty, or property, without due process of law.”
The term “due process of law” stretches all the way back to Magna Carta, the great charter extracted from King John in 1215 in which he was forced to acknowledge that his power over the citizenry was not omnipotent. It stated in part:
No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land.
That phrase — “law of the land” — ultimately evolved into the phrase “due process of law,” the phrase found in the Fifth Amendment.
What does “due process” mean? Over the centuries, it has come to encompass, at the very least, the concepts of notice and hearing.
Thus, before the government can deprive a person of his life, the government must provide him with a formal notice of why the government wishes to kill him.
But that’s still not enough. The person whom the government wishes to kill is also entitled to a hearing or trial before a judge or jury, where the government is required to come forward with relevant and competent evidence to establish that the person being targeted deserves to be killed. If the jury convicts the accused and authorizes the death penalty, then — and only then — can the government kill him.
Why did our American ancestors demand the passage of the Fifth Amendment? Because they knew that without the Fifth Amendment, it was a virtual certainty that the federal government would attract the type of people who would like to kill other people without notice or hearing — that is, without due process of law. The Fifth Amendment was designed to protect people from those types of government officials.
Several days ago President Obama announced that he was contemplating ordering his military and intelligence forces to assassinate yet another American. He didn’t name the proposed victim but apparently he’s an American living in Pakistan.
This unidentified America, of course, wouldn’t be the first American that Obama’s forces have assassinated. They have already assassinated Anwar al-Awlaki and his 16-year-old son Abdulrahman, both of whom were American citizens.
But let’s back up a moment and notice something important here: By its express terms, the Fifth Amendment does not apply only to American citizens. Its protection against being killed by the U.S. government without due process of law encompasses all people, not just Americans citizens.
It’s not really surprising that President Obama, his army, and his CIA are assassinating people, including Americans. Our American ancestors clearly anticipated such killings, which is precisely why they demanded the Fifth Amendment. They knew that this was the sort of thing that rulers and their standing armies had done throughout the ages. If they didn’t believe that federal officials would move in that direction, they wouldn’t have seen the need to enact the Fifth Amendment.
The real surprise is that the President, the Pentagon, and the CIA have been permitted to get away with their assassination program. After all, there is the Fifth Amendment to contend with. How do they circumvent the express provisions of the Fifth Amendment?
There are two ways they have accomplished this.
The first is that the federal judiciary, whose job it is to enforce the Constitution against the president (and the Congress) has abrogated its responsibility to do what it’s charged with doing. Ever since the advent of the Cold War national-security state, the federal judiciary has deferred to the authority of the president and his military and intelligence forces when it comes to killing people. We witnessed this phenomenon during the Cold War. We’ve witnessed it during the so-called war on terrorism.
The second reason relates to the first. After the 9/11 attacks, President George W. Bush proclaimed that the United States was, once again, at war, this time not against “the communists” but rather against “the terrorists.” In wartime, he said, the government is authorized to kill the enemy, without according him due process of law.
Thus, under the “war on communism,” the president, the Pentagon, and the CIA wielded the omnipotent authority to assassinate people they suspected of being communists. (That’s also the rationale that Chilean military strongman Augusto Pinochet relied upon to justify the assassination of former Chilean diplomat Orlando Letelier on the streets of Washington, D.C.) Under the war on terrorism, the president and his military and paramilitary forces wield the omnipotent authority to kill people they suspect of being terrorists.
As we learned in the assassinations of Anwar al-Awlaki and Abdulrahman al-Awlaki — indeed, as we have learned with the assassinations of countless other people — the judgment of death meted out by the president and his national-security forces will not be second-guessed by the federal judiciary, the Congress, or the mainstream media. With the exception of libertarians and some progressive civil libertarians, everyone has deferred to the authority of the national security state to kill whomever it wants for whatever reason it wants, so long as they label the person a communist or a terrorist.
Just a few days ago criminal-defense lawyers sought a delay in the terrorism trial of Khalid Shaikh Mohammed, Osama bin Laden’s son-in-law. The terrorism trial is scheduled to begin in a U.S. District Court in New York City.
What? How is that possible? What in the world is an accused terrorist doing in a federal court? Don’t federal officials say that they’re waging a “war on terrorism” and that it’s just like any other war? Since when are POWs in a war put on trial for criminal offenses in a U.S. District Court?
The New York City federal court trial of Khalid Shaikh Mohammed, along with so many other federal terrorist cases, exposes the sham of the entire “war on terrorism” rationale that U.S. officials have relied upon to avoid the constraints of the Fifth Amendment that our ancestors placed on federal officials.
The fact is that terrorism is federal crime. It’s listed in the U.S. Code as a criminal offense. It’s always been treated as a federal criminal offense. If terrorism wasn’t a crime, all those federal judges who have presided over federal terrorism prosecutions for the past several decades would have thrown the terrorism cases out of their courts. Instead, those judges ensure that indictments (i.e., notice) are issued as a condition of criminal prosecution, that the feds prove the person’s guilt of that criminal offense beyond a reasonable doubt with relevant and competent evidence (i.e., at a trial). Then, and only then, will the government be permitted to kill its proposed victim and only if the jury and judge have authorized the death penalty to be meted out.
What President Bush did in the fear-ridden environment of 9/11 was pull off a clever sleight of hand, one that the federal judiciary, Congress, and the mainstream press have permitted him (and his successor President Obama) to get away with. Bush simply decreed that he now wielded the power to treat terrorism as either a federal crime or as an act of war. It was now his option, he decreed, to treat anyone he and his army labeled a “terrorist” as either a criminal defendant or an enemy combatant. It is now his option to either honor or ignore the express provisions of the Fifth Amendment, the higher law that we the people have imposed on the president and the rest of the federal government.
Thus, it’s now the president, whoever he or she happens to be, who decides who is accorded the protections of the Fifth Amendment and who isn’t. His judgment is final. Some people are lucky. They get the Fifth Amendment route. Others are not so lucky. They get the assassination route — or the torture route — or the indefinite detention route — or the kangaroo tribunal route.
The constitutional system that our ancestors devised was not a perfect system. But one thing is for sure: For more than two centuries, it prevented federal officials from legally assassinating people, including American citizens, with impunity.
But with the dawn of the national-security state during the Cold War, the Fifth Amendment began to crack with the CIA’s super-secret assassination program against suspected communists. With the 9/11 attacks, the Fifth Amendment shattered in the face of the government’s no-longer-secret assassination program against suspected terrorists. And there the Fifth Amendment lies, in crumbles.