In the movie Witness, there is a scene where a little Amish boy, who has witnessed a murder, takes the gun of the detective who is there to protect him from a chest of drawers. He is caught by his grandfather who sits him down for a talk. The grandfather asks if the boy would use this gun to kill. The boy says that he would only kill a bad man. The grandfather asks “How will you know who is the bad man?” This is the central point of our system of justice, we don’t just assume that someone is a bad man before punishing them, we have an elaborate process designed to require proof of actions before we punish.

Unfortunately our trauma with terrorism has eroded this system. Today, as you read this, there is a list of people around the world who are targeted for death. They are suspected of being involved with terror plots, and some of them are your fellow citizens. If they are found anywhere in the world by our forces they will be killed. Not captured and brought to trial, not attempted to be captured, but killed out right.

The Center for Constitutional Rights and the American Civil Liberties Union have filed suit challenging the legality of this policy. There is an Islamic cleric named Anwar Al-Aulaqi who has been implicated in both the Fort Hood shootings and the Fruit of the Boom bomber plots. He has made many anti-American statements including the active encouragement of terrorism.

Mr. Al-Aulaqi is believed to be in hiding in Yemen. He is a citizen of the United States and he has been on so-called “kill list” for months. The issue here is can the United States use lethal force in a country which is not at war and is far from any of the existing battlefields? There is no doubt that under some circumstances deadly force can be used, but they are mostly involving situations where the person being targeted is fighting back, as in a shoot out during a capture attempt.

The other acceptable time that deadly force can be used away from the battlefield is preventing an imminent attack or loss of life. Say you knew that someone was taking a backpack bomb to a crowded market. U.S. and International law allows for you to kill that person if there is no other way to stop them. Even when the threat is immediate, this is considered to be the last resort.

A big issue in this case is the way in which names are added to list, as well as the amount of time which names stay on the list. As you might expect the nature of the process by which names are added is secret. The CIA is in charge of this list and the operations which would result in someone on it being killed. It is very troubling that this process has no oversight. It resides completely in the perview of the Executive Branch. Up to this point they have basically said “Trust us” in terms of making sure that only bad people wind up on this list.

Sadly, when we are talking about an American citizen (even one accused of the heinous crime of terrorism) trust us can never be enough. I tend to think that Mr. Al-Aulqi is piece of human garbage. I won’t shed a single tear when he is gone from this world. That said, I’m not willing to grant the Executive Branch the unlimited power to declare citizens enemies and then send our covert operations teams out to kill them. You might remember a recent Administration that took the powers they had and extended them up to and including declaring citizens enemy combatants and then holding them (and torturing them) for years without access to lawyers or even being charged with a crime. This would be just and extension of that and very, very dangerous one at that.

The law suit that the CCR and the ACLU have filed challenges the power of the government unilaterally and secretly add a person to a “death list”. Vince Warren of the CCR sums it up pretty well:

“The United States cannot simply execute people, including its own citizens, anywhere in the world based on its own say-so,” said Vince Warren, Executive Director of CCR. “The law prohibits the government from killing without trial or conviction other than in the face of an imminent threat that leaves no time for deliberation or due process. That the government adds people to kill lists after a bureaucratic process and leaves them on the lists for months at a time flies in the face of the Constitution and international law.”

The Founders were clear; they did not want the enormous force of the State to be wielded against the individual without due process of the law. This was for the protection of the individual who is at a huge disadvantage in power. It also helps to prevent mistakes. Right now the CIA and people in the Executive Branch make the call based on intelligence data. As we all know too well, intelligence data can be wrong or be spun in politically expedient ways. This is the same kind of process which had us detaining people in the Guantanamo Bay prison as suspected terrorists. We have since released many of them, after finding that they were not actually terrorists of any kind. When we are talking about execution we should have a process that is less likely to be in error, there is no giving back a life once it is taken.

If our intent to kill those who would plan, advocate and help those who would commit terrorism against our nation can not survive the process of law, then it is pretty clear that we should not be killing those people. The idea of get them before they get us is one of preemptive vengeance. That is not the American way; we don’t deal in vengeance we deal in the law, and the ideal of Justice.

Yes there are people who will kill Americans without a second thought. We don’t owe them anything. We do, however, owe ourselves the standards that have protected and guided us as a nation for 234 years. The standards of due process and equal justice before the law, in open courts. These standards allow the accused to confront witnesses against and evidence against them with their own. These standards and the ideals behind them are torn asunder when the Executive Branch, not the Judicial, decides that a citizen is to be killed, without an immanent threat and without the processes of the law.

It is easy to say we will only kill the bad men. It is much harder to know, with the certainty that is required for execution; just who the bad men really are if we do not follow the process of law.

The floor is yours