Homeland Security Watch

News and analysis of critical issues in homeland security

October 28, 2011

Persons and due process, terrorism and war

Filed under: Congress and HLS,Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on October 28, 2011

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


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.


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.


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.

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Comment by William R. Cumming

October 28, 2011 @ 7:49 am

Great post! And for 1st Amendment rights corporations are “persons” but unknown how SCOTUS would treat corporations under 5th Amendment as “persons”! Are foreign corporations supporting terrorism “persons”?

There is an element of secrecy about military commissions that drives the Republican preference for those forums. Oddly however the current administration in general has done little to promote the public’s understanding of its secret policies and actions. The drone attacks just highlight that problem.

My solution is simple. No citizen of the USA should be tried by a military commission. I can see USA DoD contractors eventually being tried by these commissions.If as I believe most of the DoD corporations rarely are willing to pass up a buck and will be even less so in the future who is to say they will not drift into supporting regimes that support terrorism. I would argue the Saudis qualify now as a government that supports terrorists. Some would disagree.

Comment by John Comiskey

October 28, 2011 @ 8:35 am


Outstanding post. No simple solution here.

Justice Breyer’s commentary on SCOTUS in times of war is instructive. See: Justice Breyer-The Supreme Court during wartime:

Also instructive and as you know part of my core understanding of an evolving homeland security narrative is Bobbitt’s Terror and Consent.

See: http://www.youtube.com/watch?v=O051beio1TE

The question is raised and perhaps Section 1046 of the House Bill answers how the US might adjudicate terrorists in the field and in our extant criminal justice system.

IMHO, a National Security Court empowered to adjudicate terrorist matters replete with judges, prosecutors, and defenders with the highest security clearances would remedy [ameliorate? ]our extant constitutional antinomies related to terrorist prosecutions. The same court might be officially notified of sanctioned targeted killings.

Comment by Stringent Law Enforcement

October 29, 2011 @ 9:03 am

While I am speaking from here on “Main Street USA” and surely citizens’ rights must be protected and we are very concerned about the way this administration seeks to compromise such cherished value, unfortunately frm my limited perspective, the Middle East will continue to worsen in scenario and eventually it will be the German led EU and Vatican supported first deployment armies of Europe which will clash w/Islamic fundamentalists, yet we, too with much diminished role, will find much reason to prosecute those citizens who choose to join the ranks of those who have unfortunate other contrary choice….for maybe our system is not the best and certainly has its flaws, however none other offers or has offered the Freedom we all are prepared to stand tall for on behalf of our beloved nation and our most charitable people.

I would ask that securiy clearances be reviewed as it appears that far too many have access to materials which should not necessarily be within their grasp.

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December 1, 2011 @ 8:43 am

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March 8, 2012 @ 7:45 am

[…] Previous posts on this issue include: Killing a Fellow Citizen and Persons and Due Process, Terrorism and War […]

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