Tweaking the Constitution to Make Extrajudicial Killing Easier

A thought experiment to get assassination advocates back on the right side of the law

The Associated Press reports that the Obama Administration is once again thinking about carrying out the extrajudicial killing of an American citizen abroad. The name of the person being targeted is unknown, but he is not in a war zone. Unnamed U.S. officials are perturbed that they haven't assassinated him yet.

What's the holdup?

The CIA drones watching him cannot strike because he's a U.S. citizen. The Pentagon drones that could are barred from the country where he's hiding, and the Justice Department has not yet finished building a case against him. Four U.S. officials said the American suspected terrorist is in a country that refuses U.S. military action on its soil and that has proved unable to go after him. Obama's new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House.

Due to flaws in the journalistic conventions that the AP adheres to, the article fails to mention an additional legal hurdle to extrajudicial killing: The Fifth Amendment states that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," and forbids depriving someone of life or liberty "without due process of law." Advocates of killing this man intend to deprive him of life without charges or trial, or even an independent review of the evidence against him.

They argue that he's "an al-Qaida facilitator who has been directly responsible for deadly attacks against U.S. citizens overseas and who continues to plan attacks ..." As yet, he hasn't explained away the government's evidence or rebutted its charges because no evidence has been presented and no charges filed. Of course, he may well be an al-Qaeda facilitator. If so, there would be value in capturing or killing him. How might we tweak the Bill of Rights so that the "just do it" approach of assassination advocates is permitted by the law? What would have to change to kill this guy, without further ado, far from a battlefield?

Here's an attempt to rewrite the Fifth Amendment to facilitate an "any time, any place" extrajudicial killing:

No person shall be held to answer for a capital crime, unless on a presentment or indictment of a Grand Jury, or upon being declared a terrorist at a secret meeting. Nor shall any person be deprived of life, liberty, or property, without due process of law, unless accused of terrorism by the executive branch. In that case neither charges nor evidence nor a trial nor any review by the legislature or the judiciary is needed. Being accused of terrorism, even by anonymous U.S. officials, shall be considered sufficient evidence of guilt. 

This revised version could have certain drawbacks. For example, despite the U.S. criminal-justice system's jury trials, guarantee of counsel, and standard of "guilt beyond a reasonable doubt," lots of innocent people get convicted; and the U.S. government mistakenly imprisoned lots of non-terrorists at Guantanamo Bay; so it could be that a system with no transparency, adversarial process, or threshold of guilt would produce some mistakes.

Then again, empowering the executive branch to kill whomever they accused would guarantee them the ability to kill actual terrorists, who are a subset of everyone.

For better or worse, I suspect the constitutional changes that I've suggested would be overwhelmingly rejected by the American people. Yet my suggestions just capture the very standard that the Obama Administration has already employed when killing American citizens, and that some U.S. officials want to use again. If we'd never countenance the changes needed to bring the Constitution in line with our behavior, that doesn't say much for our behavior, does it?