Wednesday, February 6, 2013

Drones Take Out The 5th & 6th Amendments

Above The Supreme Law?
In this post let's discuss The Fifth and Sixth Amendments to the U.S. Constitution and the ongoing attack upon them by The Obama Administration, specifically by Eric Holder's Department of Justice.

Let's discuss it in the context of drone strikes against United States citizens as well as citizens of other nations.

Any such inquiry naturally begins with the text of the Amendment at issue, and so let's take a look at the text of the Fifth Amendment first, before we begin to discuss it:
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.
(Wikipedia). And there is also the Sixth Amendment to consider:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
(Wikipedia). A white paper drafted by the DOJ makes the argument that the Fifth and Sixth Amendment requirements (first presenting evidence to a Grand Jury; then that body making the decision to indict or not, which also determines whether a subsequent petite jury trial takes place) do not apply:
Here the Department of Justice concludes only that where the following three conditions are met, a U.S. operation using legal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force would be lawful: (1) an informed high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles.
(DOJ Memo, PDF). If the issue is so clear under international "law of war principles", one wonders why the body charged with international "law of war principles" is conducting an investigation into U.S. drone strikes that kill suspected individuals in the manner the DOJ described (without an indictment or trial):
An independent U.N. human rights researcher this morning announced the opening of an investigation into the use of drone attacks and other targeted assassinations by the United States and other governments.

Ben Emmerson, the U.N. special rapporteur on counterterrorism and human rights, told reporters in London this morning that the "exponential" rise in American drones strikes posed a "real challenge to the framework of international law," according to a statement issued by his office. Emmerson said there was a need to develop a legal framework to regulate the use of drones, and ensure "accountability" for their misuse.

"The plain fact is that this technology is here to stay," he said. "It is therefore imperative that appropriate legal and operational structures are urgently put in place to regulate its use in a manner that complies with the requirement of international law.

The decision to open a drone investigation drew praise from critics of America's drone policies. "We welcome this investigation in the hopes that global pressure will bring the U.S. back into line with international law requirements that strictly limit the use of lethal force," said Hina Shamsi, director of the American Civil Liberties Union's National Security Project. "To date, there has been an abysmal lack of transparency and no accountability for the U.S. government's ever-expanding targeted killing program."
(Foreign Policy). During the confirmation hearings concerning the CIA Director nominee, the issue is likewise scheduled to be discussed:
After 25 influential years in the CIA, chief counterterrorism adviser John Brennan is currently in charge of Barack Obama’s increasing drone-plane assassinations of terrorism suspects, all of which is happening outside our courts. On Feb. 7, he will appear before the Senate Intelligence Committee for a promotion to CIA director.
(WND). The issue is not cut and dried in the eyes of many outside the DOJ, because the killing of U.S. citizens without charges and a fair trial runs against the grain of our long standing grand jury and petite jury trial requirements.


  1. Constitutional lawyer Glenn Greenwald is adamately opposed to the DOJ opinion: Link

  2. Court rules against government on drone FOIA request. Link