Gerald (Jerry) Zezas

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Drone Strikes and the Fourteenth Amendment


Recent obfuscations regarding so-called “drone” strikes on American citizens in other countries has caused me to break with my preference to not include anything remotely resembling political commentary in this blog. But I’m not completely abandoning that preference, since this will address the legal rather than the political justification for these actions.

We have those on one end claiming that the Constitution, via the Fourteen Amendment, requires that citizens of the United States receive what is referred to as “due process”. Some are referring to this as Judicial Review, which is typically used to describe when the Supreme Court determines the constitutionality of a law passed by Congress. This was first determined to be the right of the Supreme Court in a ruling by Chief Justice John Marshall as a result of Marbury vs Madison in 1803. It has nothing to do with due process rights afforded to individuals.

Section One of the Fourteenth Amendment is quoted here:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

I separated the two sentences which comprise this section in an effort to ensure that they are read as written; two separate sentences. The first sentence simply establishes the basis of citizenship and is pretty straightforward.

The second sentence, distinct from the first, describes what is referred to as the due process clause, explaining, quite specifically, that no state can abridge the rights of citizens, deprive any person life, liberty or property without this so-called due process, nor deny anyone within its jurisdiction equal protection.

Many are using this section of the Fourteenth Amendment to deny the President or the military the right to kill US citizens who have pledged allegiance to Al Qaeda or other quasi-military groups which have proclaimed a desire to kill Americans. They are using the premise that if these people are in fact citizens, they are somehow protected from being targeted without the judge, jury and other protections that the due process clause warrants.

But…the due process clause refers not to citizens, only to persons. It does not say that it is permissible to deny due process to non-citizens, protecting only citizens from deprivation of life, liberty and property. This right is specifically extended to all persons. Rest assured that the framers of the Constitution certainly knew, understood, and agonized over every single word in this document, so anyone who suggests that they had somehow intended this only for citizens needs to spend a little time reading the Federalist Papers to understand that every word used was the exact word intended. It covers not just citizens, but all persons.

So, since the due process clause, and its execution, has nothing to do with citizenship, the fact that these American members of Al Qaeda are citizens of the US is irrelevant and of no consequence. Citizens, according to the Constitution, have no more rights than non-citizens when it comes to due process.

If we, as a sovereign nation, claim the right to kill people in the name of protecting our country, (A.K.A. engaging in warfare), then citizenship is not something that we need to consider-ever.

This is not to say that so-called drone strikes are by necessity good or bad. Those are moral issues with which I will not contend in this format, but the premise that being an American somehow gives one immunity from being treated like an enemy when one proclaims his status as an enemy is non-sensical. If the military and its hierarchy determine that an individual hiding in a village in Yemen is a threat to us as a nation, then that hierarchy is morally bound to ensure that its judgment is sound and that we are not killing innocents by mistake. That obligation never ends, and we should judge the job those leaders do in that vein. If it turns out that they are killing the wrong people, they should be subject to the normal channels of investigation and potential penalties. That is not the issue here.

But to use this fraudulent argument that Americans are so special, regardless where we are or whether we’re aiming a rocket-propelled grenade at an American Blackhawk helicopter, that the military needs to hold a hearing in front of a judge to determine if our Fourteenth Amendment rights are being upheld is, on its face, imbecilic.

If a guy, even an American citizen, holds up a convenience store with a loaded .38, a cop is justified in shooting him to protect life and property without the benefit of due process. But according to these arguments, if that same guy is a member of a terrorist cell with designs on blowing up a US Navy vessel, these same rules somehow don’t apply. Yes, I certainly understand the distinction and legal separation between law enforcement and the military, just as I assume the reader understands the difference between an aircraft carrier and a 7-Eleven.

I am, generally, not a big fan of killing for any reason. But if we can legally justify killing criminals to prevent them from committing heinous acts, then the fact that the criminal is on foreign soil should not change the equation.

As long as nations justify institutionalized killing, (and they do), then the decision to commit that act of killing should be based on the actions of those targeted to be killed, not merely their citizenship.

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