Cross posted from Frederick Leatherman Law Blog.
Since the New York Times published an article about President Obama’s assassination-by-drone program, several writers, including Glenn Greenwald (here, here, here, here, and here), Tom Engelhardt (here), and Kevin Gosztola (here, here, here, here here and here) have posted articles condemning it.
I am appalled and sickened by Obama’s definition of a “militant” as any male of military age within the strike zone, unless posthumously determined to be innocent. This is a conclusive presumption of guilt and death sentence based on apparent age, gender and presence near an intended target, or in the case of signature strikes, mere association with others who also fit the definition and profile of a militant.
There is no discernible difference between this policy and the Vietnam War policy,
Kill ‘em all and let God sort them out.
The decision to target a specific individual depends on the information available about that individual which may come from a variety of sources who are reliable and unreliable. The Attorney General and the President of the United States, who is a former Constitutional Law professor, assure us that the process by which the president decides whom to kill satisfies the Due Process Clause of the Fifth Amendment. Yet, the president does nothing more than review a Power Point production with a photo of the individual under consideration with a bullet point list of alleged roles and activities in which he has engaged.
I was a criminal defense attorney for 30 years defending people charged with felonies, including death penalty offenses, and a law professor for three years teaching Criminal Law, Criminal Procedure and Causes of Wrongful Convictions. I can assure y’all that the process by which he makes these decisions is materially indistinguishable from a Star Chamber Proceeding. That is precisely what the Due Process Clause was intended and designed to prevent.
Do not ever forget that the Due Process Clause includes the Sixth Amendment right to counsel and the right to present a defense. One cannot have due process without those rights.
Even with those rights, the presumption of innocence and a jury trial, innocent people are wrongfully convicted of crimes they did not commit. According to the Cardozo Innocence Project, 292 people innocent people have been exonerated by post-conviction DNA evidence.
The seven causes of wrongful convictions are:
1. Mistaken eyewitness testimony;
2. Police Misconduct;
3. Prosecutorial Misconduct;
4. False Confessions;
5. Forensic Fraud;
6. Ineffective Assistance of Counsel; and
7. Jailhouse Informant Testimony
Note that only a small percentage of cases have biological evidence where it is possible to conduct a DNA test that will inculpate or exculpate a defendant. The seven causes of wrongful convictions can cause a wrongful conviction in any case.
The Department of Justice surveyed all public and private DNA labs in the country in the early 90s to determine how often each lab exculpated a prime suspect with a DNA test. The average rate varied little from lab to lab, whether public or private. The average rate was 22.5%
To nevertheless murder people without any meaningful process according to ridiculously overbroad definition of a militant is at best reckless homicide and at worst premeditated murder. Given its continuing use despite a high civilian casualty rate makes it premeditated murder.
To accept and allow this contrived exception to due process to stand is to tolerate an exception that swallows the rule. No American should tolerate it and no American should vote for the man who issues the order to kill. He is a murderer, a war criminal and utterly unfit to serve as President of the United States.
Anyone who votes for him will walk out of the voting booth with innocent blood on their hands.
Innocent blood that will never wash out.
I have another reason that motivated me to write this article.
President Obama obviously authorized the story in the New York Times because there is an election coming up in November and he wanted to portray himself as the candidate with the right stuff, ready, able and willing to make courageous and necessary decisions to keep all Americans safe.
But it does not take courage to order others to kill ‘em all and let God sort them out, posthumously. And it does not take courage to look at a set of Power Point slides and, like a Roman emperor, issue a thumbs up or thumbs down sign.
Those are the acts of a murderous coward afraid of losing an election.
EDIT: I added links to a series of excellent articles by Kevin Gosztola that I inadvertently omitted from my original post. Thanks to Elliott for the reminder below in the comments.