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Can There by ‘Due Process’ with Presidentially-Directed Executions?

November 25, 2012

The New York Times asked the President about the so-called ‘kill list’ of persons, American citizens included, whom he can, on his own authority, declare to be ‘dangerous’ and therefore subject to execution, without charges, trial, or conviction, solely upon his own authority.  The President’s reply tells us much about the actual state of our government and society, as opposed to that which is taught in civics classes and which a literal reading of the Constitution might cause one to believe is, or ought to be, the case.

While armed extremists may present a danger, the magnitude of such peril to a republic of over 300,000,000 souls living on 3,000,000 square miles of land and participating in the world’s largest economy, which in turn supports the world’s largest and most powerful military establishment, is small, especially when compared that the danger to our civil liberties which departure from the Constitution portends.  Danger was greater during the Civil War, but the Supreme Court, in Ex Parte Milligan (1866), ruled that the Constitution remains in force at all times, and in all places, so long as the courts are in session.  In other words, military tribunals, such as the one which ordered Milligan’s execution for ‘subversive’ activity, or Presidential committees meeting to decide who on a ‘kill list’ should be done away with, are un-Constitutional.  That ‘Millugan’ was handed down a year after the Civil war ended, a year after President Lincoln’s assassination, and during the height of the storm that led to President Andrew Johnson’s impeachment, while the South lay in ruins and under occupation, ought to drive home, firmly, the point that a ‘national emergency’ or a ‘terrorist threat’ does not constitute good cause for abandoning the rule of law, grounded as it is on the selfsame Constitution that every office-holder in the land has sworn an oath, ‘registered in Heaven’ (to use a Lincolnism), to defend.  The same reasoning applies to the previous President’s declaration of his power to imprison indefinitely, without charge, Americans whom he deemed to be suspected ‘terrorists.’

Perhaps it is timely that a new movie about President Lincoln is airing in our theaters this Christmas season.  May it remind us of how costly a thing liberty is – and of what a price Americans have paid to gain it, keep it, and pass it down to the present generation.  (May it also remind us that even great leaders err, as President Lincoln did in establishing the military tribunal that condemned Milligan.)  As citizens, it is out obligation to take our place in the sacred, unending chain that stretches back before Magna Carta and, if we are vigilant, to generations of Americans yet unborn and un-naturalized who will receive, as we did from our forebears, the same liberties, among them being the right to due process of law under a government where the executive, legislative and judicial powers are separated, as our Constitution wisely requires.

If not us, then who?

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