Fifth Amendment to the Constitution

¶ … Fifth Amendment to the Constitution of the United States reads, "No person shall be held to answer for a capital, or otherwise infamous crime… nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation" (Cornell). The operative clause in that Amendment with respect to legal procedures is "no one shall be deprived of life, liberty or property, without due process." Well, this begs the question, "what exactly is due process?"

According to Peter Strauss, due process is "an assurance that all levels of American government must operate within the law (legality) and provide fair procedures" (2002). In other words, due process has two parts. First, state and federal governments need to follow the law. And second, before the state or federal government takes one's life, one's freedom, or one's stuff, it must give one a fair shake.

Now, to be perfectly candid, a fair shake or "due process" is still a rather elusive and nebulous concept that is largely dependent a number of different variables when talking about administrative proceedings. For example, it gets hairy when one tries to distinguish between a right and a privilege or whether an individual deserves some type of hearing before their welfare is cut off. But in the context of criminal trails, due process or, more precisely put, the procedural aspects of due process have been explicated within the Constitution (and thanks to the Fourteenth Amendment, these apply to not only the Federal government, but the State governments as well).

The Six Amendment states that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense" (Cornell). If one is being charged with a crime, he/she is entitled to all of those aforementioned substantive procedures.

Now, it's fascinating to think of cases where due process as it relates to criminals can be violated. One such instance happened not too long ago when predator drones killed two U.S. citizens, one of them was Anwar al-Awlaki, an al-Qaida jihadist who was responsible for recruiting and motivating suicide bombers (Fort Hood shooter, the underwear bomber, and the Times Square bomber).

William Saletan from Slate.com acutely pointed out the due process dilemma with al-Awlaki, he wrote, "But Awlaki adds a new complication: his citizenship. We didn't arrest and try him. We didn't even give him a military hearing. We simply gathered intelligence and decided to kill him. Civil libertarians say this violates a Constitutional rule: No citizen may be "deprived of life, liberty, or property, without due process of law" (2011).

It's clear that just on the facts presented in this essay, al-Awlaki was not given due process. So, were his due process rights violated?

Well, this is the case for "can be violated," and this is a case where one's politics seem to ultimately determine one's perspective. Legally speaking, the fact that his due process rights were circumvented seems to suggest that they were indeed violated. However, the Obama Administration feels as though the drone strikes was justified and legally sound.

Saletan explains their rationale, "The administration's legal argument in the case of Mr. Awlaki appeared to have three elements. First, he posed an imminent threat to the lives of Americans, having participated in plots to blow up a Detroit-bound airliner in 2009 and to bomb two cargo planes last year. Second, he was fighting alongside the enemy in the armed conflict with Al Qaeda. And finally, in the chaos of Yemen, there was no feasible way to arrest him (2011)."

Apparently if an individual meets these three criteria, he may have his life, liberty, and/or property taken away from him without any type of hearing or judicial procedure (to say nothing of the Sixth or Eighth Amendments). Or, as Saletan points out, those three elements "by deduction, are the due process test" (2011).

But this ought to leave a bad taste in one's mouth because all three of these elements can be manipulated to violate one's due process right.

"Which leaves us with an awkward bottom line. If the target is a suspected terrorist, "imminence" can be redefined to justify killing him. If the weapon is a drone, feasibility of arrest has already been ruled out -- that's why the drone has been sent to do the job. So in any drone strike on a U.S. citizen suspected of terrorism, only one of the three questions we supposedly apply to such cases is really open: Has he been fighting alongside al-Qaida? If he has, we can kill him. That's the same rule we apply to foreigners. In effect, citizenship doesn't matter. The "due process" test is empty" (Saletan 2011).

The "due process" test is empty because the criteria have been changed. Instead of trial by jury, it's an "imminent" threat evaluation done by a group of military commanders halfway around the world. Additionally, feasibility of apprehending an individual can be arbitrarily decided and, subsequently, ruled out. One can argue that a suspected U.S.-born terrorist is too far away to send federal agents after him; therefore, it is easier (better, more cost-efficient) to send predator drones. Lastly, one can argue that even if an individual has dubious associations with terrorist organizations, the suspect is himself a terrorist.

The point is all of this rationalizing with U.S.-born, suspected terrorists leads to a sliding-scale procedural process that is not based off of justice per se (or Constitutionally enumerated rights), but based on convenience, arbitrary judgments, and cost-saving measures. So the answer to the question of can someone's right to due process be violated, the answer is of course "yes," and all it takes to understand this is reviewing the process by which the U.S. government abrogates the rights of U.S.-born terrorists.