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Monday, August 06, 2012

The Neglected Institution

My law school, Cleveland-Marshall College of Law, hosts terrific panels and symposia.  (A few years ago, the Cleveland State Law Review published the transcript of one, featuring several of the key players in the GM bankruptcy case.)  As a former academic myself, I listen to these in stereo:  part of me is learning the substantive law, and part of me is considering the institutional choices professors make.

I was particularly engaged in both capacities by one panel in particular this year.  It featured several outstanding scholars.  The question was simply:  when is the executive branch legitimized in killing a person retributively?  The context, of course, was the use of drones in the Middle East.  

The question is clearly and directly answered in the Constitution.  Yet somehow the key word -- "jury" -- was not mentioned in the panel that day.  This was professionally appropriate:  in fact, there are no law professors, anywhere, saying that word in the context of the (sort of) overseas "war on terror."  Why not?  I can think of defensible (but in the end, rather weak) political reasons -- but no good civic or academic ones.

Rudimentary constitutional analysis below the fold.

The Sixth Fifth Amendment provides:  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ...; nor be deprived of life, liberty, or property, without due process of law."  

And the Seventh Sixth Amendment requires a jury trial once such a person is "held to answer." [Apologies to those who were misled, willfully or otherwise, by my initial mention of the wrong numbers.]

So the question on targeted drone strikes is (to me) clearly answered by the Bill of Rights:  

The executive branch may legitimately harm a person retributively when two juries have held him responsible for a crime -- whether treason, conspiracy, or something else prescribed by statute.  

The Constitution does not illegalize collateral damage.  So if al-Qaeda members in Pakistan or Yemen were sent an indictment, using reasonable efforts, tried in absentia, and sentenced using the reasonable judgment of a well-informed jury (which was well informed about, among other things, potential collateral killing), drone strikes would be indisputably constitutional.

To be clear:  I am indeed advocating that law professors should, somewhere, be advocating the following as a matter of law:

Regular juries, from the regular jury system, after simple background checks and after being sworn to secrecy on pain of treason charges, should decide who on the White House's "kill list" may be targeted by a Hellfire missile.

(I am indebted for my own jury emphasis to the Fourth-Amendment scholarship of Akhil Amar.)

Why don't we do this already?  Obviously there are national security reasons (but in comments I intend to argue that those are much less serious than you'd think, especially considering the manifest puniness of al-Qaeda in the espionage department); and there are political reasons.  But law professors are neither spies nor politicians.  Why should they not make the argument in precisely the terms the Constitution suggests?  What would it cost the profession?

Prof. Raghunath asks thought-provoking questions about the impact of legal academia on civil society.  I think advancing the drone/jury argument could, long term, shift the policy discourse in ways that (in this case) might please both libertarians and liberals.  Indeed, I think a sustained push for more citizen engagement with the supercategory "national security" might galvanize our political life generally, as part of a targeted rhetorical and actual effort to re-empower the demos -- here, embodied in the jury, as the Founders clearly intended.

I suggest also, more generally, that legal academia has a deep-seated tendency to ignore the jury.  The jury leaves no textual trace; scholars cannot study it in on the page.  Therefore judges, who use all the ink, also get all the ink -- both in casebooks and on SSRN.  And therefore, too, the question everyone seems to be asking about drones is about the importance of "judicial review" -- even though that term finds no basis in our constitutional culture.

Is there any scholarship out there about the Constitution's clear requirement that drone strikes be linked with jury verdicts?  I'm eager to be brought up to speed if so.

Counterarguments addressed in comments.

Posted by Jim von der Heydt on August 6, 2012 at 02:56 PM | Permalink

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Why must we regard drone strikes as "retributive"? Their advocates rarely if ever justify them in these terms. Instead, they are usually justified as a means of national defense. Indeed, if we are going to analogize to the Fourth Amendment, why not analogize to the rule that permits the use of deadly force against a fleeing felon reasonably believed to be dangerous (without need of a jury trial)? As I understand it, drone strikes are only used against those who are justifiably regarded as threats to national security and who cannot practicably be taken into custody.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Aug 6, 2012 3:20:02 PM


Good question!
"Why must we regard drone strikes as 'retributive'? Their advocates rarely if ever justify them in these terms."

1) For the same reason Justice Roberts had to regard the individual mandate as a tax, even though all its political advocates called it a penalty: Because otherwise we'd have to call it unconstitutional, and other branches of government with more expertise than judges or law profs consider it an important policy.

2) For the same reason that the "fleeing felon" exception gives everyone the heebie-jeebies: Because if we regard such preventive violence as constitutionally legitimate in one particularized circumstance, the power we create is hard to cabin to that circumstance. I may want to trust a policemen to defend the neighborhood with force outside of due process, but then I also have to be ready to trust Sheriff Joe Arpaio to defend against "voter fraud," and President Nixon to defend against the release of the Pentagon Papers, the same way.

3) For the same reason we should all use the word 'retributive' whenever possible without fully understanding the theoretical underpinnings or a-fortiori consequences of retributivism doctrine: To bait Prof. Markel.

Posted by: Jim von der Heydt | Aug 6, 2012 3:39:34 PM

I suspect law professors aren't making this argument because it's a difficult argument to make based on traditional legal sources. For example, you say that the Seventh Amendment "requires a jury trial" when someone has been "held to answer for a capital, or otherwise infamous crime." But the Seventh Amendment only that the right to trial by jury shall be preserved "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars[.]" Federal criminal cases are not "suits at common law," there are no federal common law crimes, United States v. Hudson and Goodwin, 11 U.S. 32 (1812), and criminal cases are not "suits." That's why the Seventh Amendment is understood as only preserving a civil jury trial right, not the criminal jury trial right that the Sixth Amendment provides.

Posted by: Orin Kerr | Aug 6, 2012 4:47:16 PM

I should have added that while the Sixth Amendment provides a right to jury trial, that right is limited to "criminal prosecutions," and it seems pretty clear that targeted killing is not a criminal prosecution. And even if you did try to construe targeted killing as a criminal prosecution you'd run into a bunch of problems, among them that the Federal Rules of Criminal Procedure prohibit criminal trials in absentia. See Crosby v. United States, 506 U.S. 255 (1993).

Posted by: Orin Kerr | Aug 6, 2012 5:21:29 PM

Orin, thanks; a couple of my friends on Facebook also pointed out that I cited the 6th and 7th Amendments, when I meant the 5th and 6th.

I'm quite surprised to learn that you think it's "clear" that targeted drone killings need not follow constitutional due process. I submit that if we're serious about the 5th and 6th Amendment we should create an exception to the Fed. R. Crim. Proc. to allow for proper trials of those whom the President and CIA want to execute.

Will fix dumb mistakes in post, and reply to the Crosby precedent, when I can.

Posted by: Jim von der Heydt | Aug 6, 2012 6:58:48 PM

Researching Crosby, I find that it's a statutory-interpretation case, with no constitutional elements. So Congress can simply alter the statute.

Also, I find that Juan Cole agrees with me: http://www.juancole.com/2011/10/al-awlaqi-should-have-been-tried-in-absentia.html

Moreover, it occurs to me to note that it was not so long ago that the novelty of certain arguments that were "difficult to make based on traditional legal sources" was considered a feature of antiterrorism law, not a bug. I am suggesting that when there is new law to be made, recent legal formations and habits of mind should be less important than constitutional ones.

If we cannot resolve ourselves to consider terrorists (including the killer at the Sikh temple this week) as criminals, then we will be a society always at war. What's the upside of this choice?

Posted by: Jim von der Heydt | Aug 6, 2012 7:37:45 PM

Jim,

Just to be clear, I never said anything about the due process clause, or what is "clear" about it. Nor did I say anything about what as a matter of policy is the best solution to targeted killing, to the extent one thinks it relevant to what the Constitution requires. For that matter, I don't know what it means to be "serious" about constitutional amendments, or what the options are (if you're not serious about them, are you frivolous about them?) My point is just that your claim about there being "clear" jury trial rights here seems wrong.

Posted by: Orin Kerr | Aug 6, 2012 9:15:39 PM

You said "targeted killing is clearly not a criminal prosecution." I don't think that's clear at all, since the state is clearly punishing someone for their actions. Usually we expect such punishment to follow the rules we have set for ourselves about the exertion of state power in retribution for legally proscribed deeds.

Whatever else 'due process' means under the Fifth Amendment, it surely means what the Fifth Amendment requires. And a "capital crime," invoked in the first clause, is one that carries the penalty of being killed by the state. So if you (the government) are going to kill someone on purpose and that someone is not a soldier, you need a grand-jury indictment. Then you need a jury verdict.

If you deny those statements without a textual basis, then yes, you're being frivolous. Especially if you think what "seems wrong" to a law professor is more meaningful than what text and logic require.

Make an argument. I suggest you start by explaining why the laws of war allow targeting an individual, or else why people overseas lack the rights the Fifth Amendment ascribes to "persons."

Eschew recourse to the word 'seems.'

Posted by: Jim von der Heydt | Aug 6, 2012 9:37:52 PM

Jim,

I'm deeply confused by so much in the post and the ensuing discussion. What makes something a "criminal prosecution"? For me, it's hard to imagine a criminal prosecution that doesn't involve, at least, a prosecutor of some kind (a lawyer or lawyer-surrogate for the state), a presiding judge of some kind, and a criminal law alleged to have been violated. The 6th Amendment says a jury is a necessary part of that, too, but let's leave it out of the definition to avoid assuming a given conclusion.

Targeted killing in war rarely involves a specific allegation that the enemy (terrorist or otherwise) violated a *criminal* law. There is rarely an identifiable prosecutor or tribunal. In what sense is it a "criminal prosecution"? Just in the sense that there is killing? You recognize that killing an enemy soldier in war is *not* a criminal prosecution. What is the constitutional basis for that distinction, assuming that all other government killing is a prosecution?

It seems to me that, whatever your definition of criminal prosecution, it's going to take more than government killing.

Posted by: anon | Aug 6, 2012 11:28:41 PM

"Targeted killing [...] rarely involves a specific allegation that the [target] (terrorist or otherwise) violated a *criminal* law."

It should, since the Fifth Amendment requires it. (Note that in war, soldiers are not 'targeted' based on their individual identities -- with perhaps an exception here and there for a field general or whomever.) Indeed it should require proof before a jury. I am advocating a full in-absentia trial, with appropriate safeguards for intelligence sources.

So yes, if there is a planned government killing on purpose and it is not warfare, there should be a prosecutor, an appointed defense attorney, and a tribunal — the whole schmear. (I expected someone to say this would be too expensive, so I could simply disagree.)

I don't think you're misunderstanding; it's just a matter of whether you can conceive of society defending itself without the rhetoric of war. My post sort of assumes that you can, although I should acknowledge that it's a challenge after ten years of everyone thinking in martial terms.

I would be much in favor of new criminal laws being written to make terrorist conspiracies easier to prosecute. And as I mentioned above I think FRCRimP 43 should be altered to make trials in absentia feasible for terrorism charges.

One reason this line of thinking matters is that the scholars at the panel were unanimous that warfare is no longer an applicable framework, under the law: the 2001 Authorization to Use Military Force cannot be plausibly extended to every current manifestation of al-Qaeda. Hence (unless I'm missing something) President Obama is behaving lawlessly in targeting individuals with drones. I think he's probably doing the right things, but that does not make them legal. Juries are the check envisioned by the Constitution (again, cf. A. Amar on searches and seizures).

I have no illusions about whether implementing this system is politically possible, given the Congress we have. But I don't see why it isn't the role of law professors to advocate for it -- and, in doing so, to valorize the jury as the Founder-favored locus of democracy when it comes to retributive exertions of state power against individuals. This advocacy could have significant long-term political effects.

Posted by: Jim von der Heydt | Aug 6, 2012 11:48:59 PM

Sorry, should have answered your question: the constitutional basis for the distinction between war violence and violence against criminals is in two places. Congress is given the power to "declare war," with all that that word implied at the time -- but not to order assassinations. And the right of habeas corpus may be suspended in cases of "rebellion or invasion" (note that overseas wars don't qualify). So (it seems to me) war is a distinct kind of violence from the kind we exert against individuals because of their individual actions. (Again, I include terrorist conspiracy among those actions.)

Posted by: Jim von der Heydt | Aug 6, 2012 11:56:25 PM

A few points.

First, and more important, an unusual definition of criminal prosecution is doing most of the work in your argument. Why do we need juries? Because any government killing of a non-soldier is a "criminal prosecution," and the Sixth Amendment requires juries for criminal prosecutions. So when a police officer shoots a suspect, that's a "prosecution"? I don't think that's the conventional understanding.

It seems unlikely that you could ever convince anyone to buy your conclusion on juries who didn't already agree with you based on an appeal to such an atypical definition. What you really want to say is that government shouldn't or can't kill non-soldiers outside the criminal system, and you should find a way to say it that doesn't depend on a definition that more or less assumes the conclusion.

Second, the suspension clause can't do the work for you, as it only *applies* in the US--Boumediene is the exception that proves the rule. Overseas wars don't justify suspension, but they also don't require it, except perhaps for US citizens abroad.

Third, trials in abstentia are not merely problematic under the Federal Rules. There's a different due process problem, namely that of personal jurisdiction. On what basis does a US court subject a non-US combatant to judgment in his absence?

Posted by: anon | Aug 7, 2012 12:13:56 AM

Good questions.

1) "when a police officer shoots a suspect, that's a 'prosecution'?". No, because it's not retributive. It's a response to a clear and present danger (and has nothing to do with the person's status as a 'suspect'); otherwise it's unlawful.

2) Nothing in my argument is about habeas corpus; I was just providing a textual basis for the distinction between war and non-war uses of force against an individual. Obviously, detention requires judicial review; I'm writing about killing, which requires a jury.

3) Personal jurisdiction can be found when someone directs actions into a jurisdiction. Terrorist conspiracy can be defined to allow such exercise of a federal Court's power, although I admit it's an obstacle. -- This and the point abut Crosby are truly worth pondering.
Surely this kind of problem should be a cottage industry for prawfs seeking to bring overseas killing of terrorists under a constitutional umbrella.....

Posted by: Jim von der Heydt | Aug 7, 2012 12:30:24 AM

Jim, really briefly, I'm very sympathetic to your conclusion, but very skeptical of your argument for it. As anon noted, it really relies on a nonstandard definition of criminal prosecution. I read your definition a little more charitably, viz., you seem to be saying that a killing is a criminal prosecution if it is a) targeted at an individual, and b) for something (bad? illegal?) they're alleged to have done.

But surely that isn't all that a criminal prosecution is. A criminal prosecution also has an expressive dimension -- to punish a criminal is to say that s/he was obliged to follow the rules of one's society (to invoke law's claim to authority) and undermined some kind of relationship with the community as a whole by failing to do so. By contrast, a foreign assassination has no such expressive content. When the CIA tried to get Castro, they thought he was a bad guy and were targeting him as an individual, but they weren't targeting him because he'd violated some obligation to obey the law. They were targeting him because he was in the way of US foreign policy: pure reasons of state.

Instead of basing the jury argument on the idea of a criminal prosecution, why not take the following strategy? For citizens, those present in the territory, and those who otherwise have a claim to the protection of the constitution, there's this thing called procedural due process. Capping someone surely impairs a life, liberty, or property interest. And it's reasonable to argue that given the gravity of the interest, the process that is due is something like a jury check on executive discretion.

For those not swept within the arms of the due process clause, we have human rights treaties which express similar ideas and could be analyzed in similar ways.

Then you can get your jury argument without all this criminal stuff.

Posted by: Paul Gowder | Aug 7, 2012 9:01:35 AM

I would agree with Orin and the 12:13 anon that a textual or doctrinal argument regarding the Constitution's jury trial right is not likely to get you very far, for the reasons that they outline. But I really like the underlying idea that the jury is a neglected institution in matters of national security, and that it could or should play a larger role. Are you writing an article on this? I think if you frame the jury trial right as a structural safeguard of democracy (and there is some good scholarship to draw on for that), and if you look at the policy reasons why the jury trial right was so important to the framers and what it would mean to bring the jury trial into matters of national security, it could be a really interesting piece--certainly one I would like to read.

Posted by: CBR | Aug 7, 2012 9:16:52 AM

I missed Paul's comment when I made my last comment, but I would agree with it. I would also add that the jury trial right isn't just a matter of protecting the individual targeted (who as Paul notes may not have a right to due process) but is also a matter of protecting the democratic participation of US citizens.

Posted by: CBR | Aug 7, 2012 9:20:58 AM

This discussion illustrates how anyone can argue that any government policy is unconstitutional by playing with levels of generality. You take an individual clause in the Constitution, and then you replace it with an abstract principle that you identify as being the essence of the constitutional provision -- making sure that you select an abstract principle that is in at least arguable conflict with the policy you want to say is unconstitutional. For example, here Jim's move is to replace the Sixth Amendment (or Seventh Amendment, or whichever amendment) with an abstract principle that the state cannot do something punitive against people without the process of an indictment, a public trial, and a jury decision. The abstract principle then creates the conflict with the policy: in Jim's view, targeted killing requires the process because it is something punitive undertaken against people. Jim then presents his argument as required by logic and text, while those who question his argument are not taking the constitution seriously or are engaging in bogus law professor conceits. The problem is that all the work is being done by the replacement of the actual provision of the Constitution with the abstract principle identified. And that move is usually pretty dubious to outside observers because it creates all sorts of unexpected results and conflicts with existing law that the advocate never expected and that will seem pretty jarring to everyone else.

Posted by: Orin Kerr | Aug 7, 2012 12:22:54 PM

This is a terrific explanation of an idea that didn't occur to me:
"To punish a criminal is to say that s/he was obliged to follow the rules of one's society (to invoke law's claim to authority) and undermined some kind of relationship with the community as a whole by failing to do so. By contrast, a foreign assassination has no such expressive content."

To me, it seems to me that the drone strikes have exactly this expressive content. They "send the message" that overseas persons have a relationship with the US, in which we require them not to make plans to do violence against our country or embassies. To have legitimacy, I think that a drone strike must mean this unless it is part of a conflict between state-like entities.

I think the Castro analogy is inapt, because it is indeed part of a conflict between states. (Moreover, wasn't it illegal?) If Castro had retired, a new leader continuing his policies would have become the target, and killing Castro would have had no expressive content anymore. The issue was not the man but the state he controlled. By contrast, the terrorist targets of drone strikes, if they are correctly identified, are being targeted not as a matter of state but as a matter of community safety and as a matter of individual justice. That latter category requires fact-finding of the kind the Framers insisted on a jury to do.

Now, perhaps the 'war on terror' model can be reinvigorated (and Gitmo re-theorized somehow). But as of now there are a lot of serious problems with the 'conflict between entities' model of the 'war on terror' (and there is lots of scholarship about those problems out there. So the drone strikes are without a conceptual home). I would have thought the default alternative framework would be the other kind of state violence, the kind it exerts against those who harm civil society through individual actions.

My assumption -- remarkably, shared by no one at all! -- was that potential drone targets, if they were not enemy soldiers, had the default rights the Constitution ascribes to persons. Is there a precedent someone can point me toward for the idea that only "U.S. persons" have those rights? (I'm pretty confident there is, and apologize for being ignorant of it up front.)

I appreciate the thoughtful responses!

I hope if nothing else my post indicates how alien the law-professor and the non-law-professor mindsets are to each other. It honestly did not occur to me (especially in this rhetorical environment celebrating "enumerated powers") that drone strikes might not require a legitimating constitutional basis.

Posted by: Jim von der Heydt | Aug 7, 2012 12:25:04 PM

"The jury trial right isn't just a matter of protecting the individual targeted but is also a matter of protecting the democratic participation of US citizens."
Right on!

And I am ready to defend against all comers the ability of regular Americans to weigh lightly filtered intelligence results, sort through the moral issues with an inevitably somewhat imprecise drone strike, reach a fair verdict, and then (on pain of treason charges) keep secret what little they have learned about US intelligence methods. These are solemn responsibilities that SHOULD, in a democracy, be shared when possible.

Posted by: Jim von der Heydt | Aug 7, 2012 12:27:46 PM

"conflicts with existing law"

Thanks, Orin -- please do specify. I see that Crosby raises a significant statutory problem.

In general, I think that playing with the levels of generality is a game more than one might play. I think the Founders would have thought that "war" and "jury trial" exhausted the scenarios in which the state could kill someone. Otherwise new names for the same thing could be used to circumvent the Fifth Amendment at the will of any executive.

Thanks again for engaging.

Posted by: Jim von der Heydt | Aug 7, 2012 12:31:21 PM

Jim, perhaps the only move of constitutional argument more suspect than playing with levels of generality is the unsupported claim that the Founder probably would have supported your position because your position seems so persuasive that surely the Founders would have agreed with it. Anyway, good luck making the new law.

Posted by: Orin Kerr | Aug 7, 2012 12:53:08 PM

I would recommend reading Jeff Kahn's excellent article from the Michigan Law Review "Zoya's Standing Problem, or, When Should the Constitution Follow the Flag?" It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1383651

Posted by: CBR | Aug 7, 2012 1:00:05 PM

Orin, "playing with levels of generality" seems a little uncharitable a way of describing the totally conventional method of interpreting a legal text with reference to the principles it's supposed to instantiate. cf. Dworkin, Douglas's penumbral emanations, etc. etc. etc. -- off the top of my head, even ultra-respectable constitutional theorists like Ely could be accused of it -- the argument for representation-reinforcement theory is based in part on an interpretation of the principles underlying the various specific protections of the constitution, etc. I agree that its particular use here is suspect, but surely there's at least a pretty solid case to be made for the method's legitimacy in general.

Posted by: Paul Gowder | Aug 7, 2012 3:28:55 PM

Anon: The way to get your article into a lower-ranked law review is to write an excellent article. In addition, it helps to be aware of the curious and under-disciplined minds that will read your work, and acknowledge them as an audience you care about. Civility is a good start.

Orin: Your characterization of my argument is inattentive. My claim was that the Constitution exhausts the legitimate modes of purposeful government killing -- (1) war and (2) execution of criminals. I supported this claim with the assertion that any alternative reading allowing for some option (3) would turn the Fifth Amendment into a dead letter. Why should the government get a grand-jury indictment and a due-process conviction of someone it wants to execute, when it can simply declare that person a danger to the state under Implicit Doctrine of Legitimate Killing #3, and rub him or her out?

This argument surely has holes, and there may be historical reasons to believe the Constitution envisions option number (3). But your post fails to respond to mine. Moreover, it ignores the premise of my initial post, which was that professors do not immanently bear the responsibility of "mak[ing] new law," and therefore are free to advance ideas that might be (God forbid) jarring to this or that reader.

Also: surely you know that a vast amount of constitutional interpretation hinges on 'playing with levels of generality'? Profs. Tribe and Dorf made the argument in 1990 that selecting the level of generality is almost ALWAYS where the real work is done: "The question ... becomes: at what level of generality should the Court describe the right previously protected and the right currently claimed? The more abstractly one states the already-protected right, the more likely it becomes that the claimed right will fall within its protection. For instance, did the Court in Griswold v Connecticut recognize the narrow right to use contraception or the broader right to make a variety of procreative decisions? Obviously, the descriptive choice will affect the Court's decisions in other cases." 57 U. Chicago L. Rev. 1056, 1058 (1990). It does not follow that any selectio of a level of generality is arbitrary and indefensible.

Upshot: despite several helpful interventions, I am no less puzzled than I was yesterday at the fact that almost no one in legal academia is arguing for a Bill-of-Rights-based approach to targeted anti-terrorist bombings overseas. The Bill of Rights endows juries with terrific power, and I think the legal academy should consider the possibility that they can be trusted with it better than any executive.

Any examples out there of prawfs doing scholarship or blogging or what-have-you that pays compensatory attention to lay decision-makers -- juries, philistine third-tier Submissions Editors, or the like?

Posted by: Jim von der Heydt | Aug 7, 2012 4:05:36 PM

Paul,

The fact that Justice Douglas and Ronald Dworkin made some of their arguments by playing the generality game is not a reason to be charitable to the generality game. Rather, it strikes me as a reason to be unimpressed by the arguments made by Justice Douglas and Ronald Dworkin.

Posted by: Orin Kerr | Aug 7, 2012 5:38:05 PM

Here's a stab at an answer to the panel's question:

1. The President has the power to command the armed forces of the United States, thus he has the power to commmand those forces to kill people.

2. The President's exercise of this authority requires compliance with the Bill of Rights. It must be, first and foremost, consistent with due process of law, and if via a criminal trial, the trial requires first a grand jury indictment, and then all the procedures of Article III and the Sixth Amendment.

3. Due process, in turn, requires compliance with the customary usages and modes of proceeding of Anglo-American jurisprudence. (Murray's Lessee). Thus, the process that is due to persons where reliable courts of law do not exist, including battlefields and uncivilized areas, is to use reasonable means to identify them, and then kill them. If found, however, where the more humane, and less unjust "coercion of the magistracy" (Fed. 15) is reasonably available, such as in the United States and in many other countries, then the President must rely on the magistracy, rather than the coercion of arms. Ex Parte Milligan.

Posted by: David Upham | Aug 11, 2012 3:40:33 PM

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