Persons and due process, terrorism and war
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.
The Fifth Amendment to the Constitution of the United States
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Because most readers of Homeland Security Watch are also news-nerds you may have noticed we killed another US citizen recently. Abdulrahman al-Awlaki the sixteen year old son of Anwar al-Awlaki was killed during a drone attack in Yemen. The young American was traveling with Ibrahim al-Banna, media chief of Al Qaeda in the Arabian Peninsula, the presumed target of the attack.
Abdulrahman al-Awlaki
Abdul had the bad luck of being in the wrong place at the wrong time, in the care of bad guys, and being the son of a very bad guy. As far as we know though, he was not directly involved in planning or implementing terrorist actions against the United States. No legal action had been taken in his regard, certainly no Grand Jury indictment.
There are some rumors (but only rumors) that al-Banna was taking Abdul and a 17 year-old cousin (also killed) to visit the remains of his father.
The US government does not officially comment on our drone operations in Yemen (or Pakistan). While we have acknowledged the death of both father and son, we did not discuss the means or our involvement in the means.
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I was surprised when reminded of the Bill of Rights use of “person” rather than “citizen.” It has been an instructive surprise.
The differences between person and citizen have proliferated since the first amendments were adopted in 1791. The French Revolution, the 14th Amendment, and increasing international mobility have all served to give enhanced attention to the rights of citizenship.
But the Constitution still refers to persons.
The classical Latin persona was a mask as used in Greek plays: A temporary and even misleading representation. The early Christian church transformed our understanding of the word when Tertullian used it to explain the distinct “persons” of the Trinity. Each person of the Trinity is a particular expression of an essential unity and substantive reality beyond the individual manifestation.
Through a complicated process of ecumenical councils, Medieval scholasticism, popular misunderstanding, and much more, Western culture came to view each individual as an expression of the divine. This is the foundation of natural rights and the personhood of English Common Law.
The rise of nationalism has challenged the universalist claims of personhood. Increasingly it is citizenship — national identity — that matters, not some tendentious claim to being a child-of-God.
Congress is currently considering a new measure which would further diminish the personhood of non-citizens. As adopted by the House of Representatives, Section 1046 of the Defense Authorization Act reads,
After the date of the enactment of this Act, any foreign national, who–
(1) engages or has engaged in conduct constituting an offense relating to a terrorist attack against persons or property in the United States or against any United States Government property or personnel outside the United States; and
(2) is subject to trial for that offense by a military commission under chapter 47A of title 10, United States Code;
shall be tried for that offense only by a military commission under that chapter.
This section is causing consternation among some Senators and administration officials. The General Counsel for the Department of Defense has critiqued this legislation as follows:
Section 1046 of the House bill imposes an across-the-board requirement that, if military commissions jurisdiction exists to prosecute an individual, we must use commissions, not the federal courts, for the prosecution of a broad range of terrorist acts. Decisions about the most appropriate forum inwhich to prosecute a terrorist should be left, case-by-case, to prosecutors and national security professionals. The considerations that go into those decisions include the offenses available in both systems for prosecuting a particular course of conduct, the weight and nature of the evidence, and the likely prison sentence that would result if there is a conviction. A flat legislative ban on the use of one system – whether it is commissions or the civilian courts — in favor of the other is not the answer.
A weak procedural critique, it seems to me.
Since the Constitution was adopted “due process of law” has changed in a variety of ways. Military commissions meet a minimum test of due process. But it is very difficult to imagine James Madison smiling at the prospect of military officers being preferred as the agents of the judicial power set out in Article III.
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We are increasingly inclined to treat non-citizens as non-persons. Our rights are less and less a matter of the dignity due any child of God. For many, a non-citizen obviously does not deserve the rights of a citizen. The non-citizen is inherently other and the other is innately a possible threat. This is an entirely reasonable judgment based on a purely nationalist perspective.
Abdulrahman al-Awlaki, born in Colorado, fan of The Simpsons and Harry Potter, was a citizen. Some would claim he was also a suspect other and potential threat. His personhood? His citizenship? Nice abstractions for a courtroom perhaps, but distractions in the midst of deadly conflict… others would argue.
I am concerned that as the source of our rights shift from existential personhood to instrumental citizenship our sense of shared identity and common dignity is diminished and the very concept of fundamental rights is weakened.
The Constitution still refers to persons.
