Occasionally the trial of a despicable man or woman feels like an unnecessary waste of time and treasure. Luckily, constitutional justice gives no quarter to shortcuts: the US Constitution’s fifth, sixth, seventh, and fourteenth amendments ensure that each citizen receives his or her day in court.
Unfortunately a different vision animates many political leaders. According to the President and many old-fashioned conservative Republicans, the extrajudicial execution of traitorous Americans abroad is fine. Specialized legal experts replace judge and jury; the Constitution is ignored.
Extrajudicial executions are justified with essentially one rational: the Constitution and Bill of Rights do not apply to Americans abroad, hence traitorous individuals outside the geographic boundaries of the United States can be executed-by-drone without a trial. A constitution-oriented response to this flawed logic is equally straightforward.
Contrary to what the President and many prominent members congress believe, the constitution’s discussion of treason clearly suggests a trial, and subsequent amendments only reinforced the centrality of impartial trials to the American legal system. More generally, nothing in the Constitution or Bill of Rights indicates that citizens lose their right to a trial when they leave United States soil.
Consequently, it is constitutionally aberrant to suggest that US citizens who plot and encourage violence and warfare from abroad, yet do not participate in combat or pose an immediate physical threat, can be summarily killed.
Yesterday Senator Rand Paul vocalized his opposition one of President Obama’s judicial nominees, Professor David Barron, precisely because Mr. Barron believes that extrajudicial executions are constitutional. Fortunately, Mr. Paul went beyond opposition – he offered a solution.
Critics say how would we try these Americans who are overseas? The Constitution holds the answer. They should be tried for treason. If they refuse to return home, they should be tried in abstentia and provided a legal defense. If they are found guilty, the method of punishment is not the issue. The issue is and always has been the right to a trial, the presumption of innocence, and the guarantee of due process to everyone, no matter how heinous the crime.
Loathing and fear does not give us a societal right to abandon the Constitution and Bill of Rights – they exist to protect ordinary and unusual Americans alike from the ravages of an unrestrained majority. As memorial day approaches, let us renew our commitment to the guarantees of liberty found within our Constitution and its amendments: generations of Americans have died to protect us from militaristic and unconstitutional decision-making typified by the remote execution of traitors. Liberty, not convenience, is paramount.