Due process by drone

Hostages killed in U.S. drone strike
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Story highlights

  • Paul Callan: U.S. in a state of war against al Qaeda, ISIS
  • Two Americans killed by drone forfeited right to due process, he says

Paul Callan, a CNN legal analyst, is a former New York homicide prosecutor and is now "of counsel" to two New York law firms: Edelman & Edelman, PC and Callan, Koster, Brady & Nagler, LLP where he litigates civil and criminal cases. Read Callan at CallanLegal.blogspot.com. Follow him on Twitter: @PaulCallan. The opinions expressed in this commentary are solely those of the author.

(CNN)A strange coalition of sworn political enemies united briefly last week to question the validity of the Obama administration's actions, and in one case to even accuse the President of a war crime.

Following the announcement that U.S. counterterrorism operations along the Afghan-Pakistan border had killed two American senior al Qaeda operatives along with two hostages -- one American and the other Italian -- President Barack Obama faced attacks from left-wing Democratic "progressives," the American Civil Liberties Union and right-wing Republican "libertarians."
Paul Callan
The line of thought among many of the President's critics was best summed up in the words of Fox News' house libertarian, former judge Andrew Napolitano, who declared that "The president cannot summarily kill [Americans]. That's a war crime!"
    Actually, it isn't.
    Opponents of the drone strikes have raised concerns that the Fifth Amendment of the U.S. Constitution, as well as federal murder statutes, prohibit taking the life of an American citizen without due process of law. They say that this commitment to due process requires careful judicial and jury scrutiny before the imposition of the death penalty.
    And there is certainly an irony that while the CIA death drone was in flight, Boston Marathon bomber Dzhokhar Tsarnaev was being accorded exactly that due process. Despite a crime of monstrous cruelty, a man who confessed his videotaped crimes in a bloody screed at the scene of his arrest was accorded a full trial and all the due process anyone could expect.
    With that in mind, President Obama's opponents ask why were American citizen Adam Gadahn, and his compatriot Ahmed Farouq, denied due process? Under what provision of constitutional or statutory law can the president of the United States sentence an American citizen to "death by drone?"
    After all, the American Constitution requires that even an act such as the senseless slaughter in Boston will not be punished by death unless the penalty is sanctified by jury, judge and an appellate process that on average takes over a decade to complete. Only then is the "due process" stamp of justice affixed, and the penalty of death administered.
    The simple answer is that even if this had been a targeted assassination strike, both men forfeited their customary due process rights when they moved to a foreign country and took up arms against the United States.
    To his credit, President Obama seemed to be genuinely distressed during his surprise press conference revealing the tragic details of the secret attack, and his grim demeanor underscored the unfortunate reality that the innocent as well as the guilty perish in America's complex "War on Terrorism."
    Yet, while tears have rightfully been shed for the unfortunate deaths of the hostages, it is hard to muster any sympathy for the two other Americans who perished in the attack of the CIA's high tech drone. One of the two was the Californian-born Gadahn, though he is now better known as "Azzam the American." The bearded and turbaned former goat herder seemed to take great delight in his role as a top al Qaeda propagandist. threatening that "The streets of America shall run red with blood" on widely distributed al Qaeda recruitment videos.
    The fact that the highly articulate Gadahn spoke in a clear and natural American accent also appeared to make him an effective terrorist recruiter throughout the English-speaking world -- a modern day version of "Tokyo Rose," though at least the infamous and sultry voice of World War II Japanese propaganda could claim that she acted under duress.
    The claim, however, that a Tsarnaev style of "due process" proceeding was required under the circumstances of this Pakistan drone strike is, frankly, absurd.
    The Obama administration claims the American al Qaeda operatives were enemy combatants who perished on a battlefield of their choosing in a war of their choosing. With this in mind, the only real tragedy was the deaths of the two innocent hostages. And until there is compelling evidence available that this claim is untrue, then the reality is that American law does not require "due process" for occupants of military facilities that are bombed in connection with a so called "Signature Strike" in the war on terrorism, a war authorized by Congress both implicitly and explicitly in the funding and other resolutions that have been issued since September 11, 2001.
    And for critics concerned that the United States has not issued a formal declaration of war, both al Qaeda and ISIS have repeatedly declared their war against the United States in words and deeds. There can be no doubt that we are in a state of war against those two terrorist entities.
    American enemy combatants who want more conventional due process can always return to the United States to obtain justice from the court and jury process they despise. Failing that, in times of war, there is nothing new in the concept of the commander in chief acting through his military representatives to order the death of enemy combatants, including those who hold U.S. citizenship, when they reside on foreign soil and are actively involved in armed hostilities directed at their own nation.
    Even our third president, Thomas Jefferson, author of the Declaration of Independence and perhaps America's most preeminent civil libertarian, had to face the realities of an undeclared war against Barbary pirates, who also claimed to derive their divine inspiration for attacks on American interests from the Koran's references to the taxation of infidels.
    Jefferson does not appear to have seen the war in religious terms. However, he did see a threat to the survival of the young nation he had struggled to create, and although the weapon at hand was a navy rather than drones, he was willing to use American military power in its defense.
    History does not record him worrying about due process for the pirates. The 44th president of the United States should not be afraid to act decisively in our nation's defense, either.