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. - Fifth Amendment, US ConstitutionBack in September 2011 a US drone flying over Yemen fired a missile at a car in which two American citizens were riding. The blast killed Anwar al-Awlaki, a radical cleric who may or may not have had ties with al-Qaeda and Samir Khan. Two weeks later another drone fired a missile into a crowd at an outdoor cafe killing Mr. al-Awlaki's 16-year-old son, Abdulrahman, who was also an American citizen.
The US government claimed that Mr. al-Awlaki was in a leadership position in al-Qaeda and that his murder was justified in protecting the national security of the United States. The government also claimed that it had no idea that al-Awlaki's son was in the cafe when it was attacked.
The decisions to kill these Americans was made by a small cabal of government officials huddled in the White House. There were no formal charges. There were no indictments. There were no probable cause hearings. There was no discovery. There was no trial. There was nothing but a star chamber who looked over a list of names and decided who would live and who would die.
Mr. al-Awlaki's parents brought suit against the United States government for the murder of their son and grandson. They alleged that the government's actions had amounted to depriving Mr. al-Awlaki and his son life without due process of law.
Last week US District Court Judge Rosemary Collyer of the District of Columbia tossed out the lawsuit. She chose not to believe that the government had deprived both Mr. al-Awlaki and his son of their due process rights. She fell lockstep in with the official line that we live in dangerous times and that we should trust our government to make the right choices.
In her opinion, Judge Collyer ran through a list of government entities that had looked into Mr. al-Awlaki's background and status. She fully accepted the proposition that if a government agency investigates a matter and draws a conclusion that the conclusion must be accepted as valid.
She, of course, never seemed to give a second thought to the idea that sometimes the government gets it wrong. Everyday across this country there are juries who return verdicts of not guilty in criminal cases because they didn't believe the government had proved its case beyond all reasonable doubt. There are cases dismissed in courts across their country every day because prosecutors come to the realization that they just can't prove their case.
But for Judge Collyer you don't even have to go that far. In her mind the allegation alone - if it is repeated by enough people - is sufficient to prove guilt.
The evidence supporting the government's allegations against Anwar al-Awlaki was never tested in the crucible of trial. The government's witnesses were never challenged on the stand. Mr. al-Awlaki was never given the opportunity to respond. In short, the system of laws that we have in place to "protect" those charged with criminal offenses was ignored by a judge who was looking for any reason to dismiss the case.
In this case the US government exercised its most invasive power - the power to determine who should die - against three American citizens without affording them due process of law. And a judge who swore she would uphold the law and the constitution blindly accepted the government's story without so much as a doubt.
The message is quite clear. The government is here to protect you. Such quaint notions as due process only make it harder for the government to do its job. Besides, why would anyone from the government lie?
Cameron Willingham was accused by the State of Texas of setting his house on fire and killing his children. He was indicted. He was tried. He was convicted. He was murdered by the state. And he was innocent. Sure, he was afforded his due process rights - and look how much good it did him.
Michael Morton was accused by the State of Texas of killing his wife. He was indicted. He was tried. He was convicted. He sat in prison for 25 years before he was exonerated when his attorneys discovered the games that Williamson County prosecutors played during the investigation and during trial. He was afforded his due process rights - and he lost 25 years of his life.
Anthony Graves was accused by the State of Texas of murder. He was indicted. He was tried. He was convicted. He was sentenced to death and sat on death row for more than two decades when his attorneys uncovered the illegal and unethical actions taken by the prosecutor. He was afforded his due process rights - and stared death in the face.
But still Judge Gallyon thought it was enough that someone from the government said that Anwar al-Awlaki was a bad guy and deserved to die. And that is a very frighting notion. The fact that it was a judge makes it even worse.
H/T Democracy Now! and Center for Constitutional Rights